EXHIBIT 10.27
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT to that certain Employment Agreement, dated as of
_________________, ____ (the "Employment Agreement"), by and between
_____________________ (the "Employee") and INTERACTIVE INTELLIGENCE, INC. (the
"Company"), is made and entered into as of this 15 day of March, 2000.
W I T N E S S E T H :
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WHEREAS, the Employee holds stock options under the Company's 1999
Stock Option and Incentive Plan (the "1999 Plan") and/or 1995 Incentive Stock
Option Plan (the "1995 Plan");
WHEREAS, the Company's Board of Directors amended the 1999 Plan and
stock options theretofore granted to delete a provision which limited the
acceleration of options and restricted stock in the event the participant is
subjected to the excise tax imposed under Sections 280G and 4999 of the Internal
Revenue Code;
WHEREAS, in connection with such amendment to the 1999 Plan, the Board
of Directors determined that the Company should amend the employment agreements
of the employees who have been granted stock options under the 1995 and 1999
Plans to provide that if the employee is subjected to the excise tax imposed
under Sections 280G and 4999 of the Internal Revenue Code, the Company shall pay
to such employee an amount sufficient to reimburse such employee for the amount
of such excise tax imposed by Sections 280G and 4999 (and any equivalent state
or local statutes) on an after-tax basis; and
WHEREAS, Employee is agreeable to such amendment;
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, the parties hereto mutually covenant and agree
as follows:
1. The following new section is hereby added to the end of the
Employment Agreement:
SECTION 20. GROSS-UP PAYMENT.
(a) If any portion of the severance payments payable to the Employee
hereunder or any other payments or benefits received or to be received by the
Employee from the Company, including without limitation stock options or
restricted granted pursuant to the 1995 Incentive Stock Option Plan and/or the
1999 Stock Option and Incentive Plan (as amended) (collectively, "Severance
Benefits") (whether payable pursuant to the terms of this Agreement, or any
other plan, agreement or arrangement with the Company or any corporation
affiliated with the Company within the meaning of Section 1504 of the Internal
Revenue Code of 1986, including any amendments thereto or successor tax codes
thereof (the "Code")) would, as
determined by the Company in its sole discretion, be subject to the tax imposed
by Section 4999 of the Code (or any successor provision) or by any substantially
equivalent state statute (the "Excise Tax"), then the Company shall pay to the
Employee, on or before the day such Excise Tax is payable by the Employee
through withholding or otherwise, an additional amount (the "Gross-Up Payment")
such that the net amount retained by the Employee, after deduction of (i) any
Excise Tax, (ii) any federal, state or local income tax, interest charges or
penalties arising in respect of the imposition of such Excise Tax, and (iii) any
federal, state or local income tax or Excise Tax imposed upon the payment
provided for by this Section 20, is equal to the after-tax amount of such
Severance Benefits assuming the Employee had not incurred any liability for the
Excise Tax (i.e., after federal, state, and local income tax, but not the Excise
Tax). For purposes of determining the amount of the Gross-Up Payment, the
Employee shall be deemed to pay (x) federal income taxes at the highest stated
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made and (y) state and local income taxes at the
highest stated marginal rates of taxation in the state and locality of the
Employee's domicile for income tax purposes on the date the Gross-Up Payment is
made taking into account the maximum reduction in federal income taxes that
could be obtained from deduction of such state and local taxes.
For purposes of determining whether a Gross-Up Payment is due and the
calculation of the Gross-Up Payment, if any, the value of any non-cash benefits
or any deferred payment or benefit shall be determined by the Company in
accordance with the principles of Section 280G. In making these determinations
and calculations and in determining the value of any non-cash benefit or
deferred payment or benefit, the Company may rely on the advice of a firm of
recognized attorneys, compensation consultants, appraisers, actuaries, or
accountants as to any tax issues with respect to Sections 280G or 4999 of the
Code, any legal issues with respect to interpreting this Amendment, the
Employment Agreement, any benefit, stock option, or other agreement, plan, or
other law, regulation, judicial or other authority which may affect the
determinations and calculations hereunder, and the value or reasonableness of
any item of compensation or benefit to be received by the Employee. Subject to
Section 20(b) below, the Company's determinations and calculations shall be
dated as of the date payment is made and addressed to the Company and the
Employee and shall be binding upon the Company and the Employee.
(b) As a result of the uncertainty in the application of Section 280G
of the Code and valuation of certain noncash benefits at the time of the initial
determinations by the Company, it is possible that amounts will not have been
paid or distributed by the Company to or for the benefit of the Employee
pursuant to this Agreement that should have been paid or distributed
("Underpayment"). In the event that, based upon the assertion of a deficiency by
the Internal Revenue Service against the Company or the Employee which the
Company believes has a high probability of being upheld or has been upheld by a
court of final jurisdiction, an Underpayment has occurred, any such
Underpayment, computed in the same manner as the Gross-Up Payment is computed
under Section 20(a), above, shall be promptly paid by the Company to or for the
benefit of the Employee.
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2. Except as amended as set forth herein, the Employment Agreement
shall continue in full force and effect according to its terms.
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed by its duly authorized officer and the Employee has hereunto affixed
his hand as of the day and year first above written.
INTERACTIVE INTELLIGENCE, INC.
By: ___________________________________
Printed: ______________________________
EMPLOYEE
_______________________________________
Printed: ______________________________
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