EXHIBIT 10.32
AMENDMENT NO. 1 TO SEVERANCE AND
CHANGE OF CONTROL AGREEMENT
This Amendment No. 1 to Severance and Change of Control Agreement (the
"Amendment") is entered into as of September 14, 2000 by and between JNI
Corporation, a Delaware corporation ("JNI"), and Xxxxxx Xxxxx ("Employee"). JNI
and Employee are sometimes referred to herein as the "Parties."
WHEREAS, the Compensation Committee of the Board of Directors of JNI
has approved certain changes to Employee's compensation package, including a
change to her Severance and Change of Control Agreement (the "Agreement") to
provide for twelve months salary continuation and acceleration of her options if
she is terminated by JNI without cause or she resigns for "good reason," even if
a change of control of JNI has not occurred. Parties wish to amend the
provisions of the Agreement regarding the automatic extension of the term of the
Agreement; and
WHEREAS, the Parties believe this Amendment will benefit each of them.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the Parties hereto agree as follows:
1. The heading of Section 1 of the Agreement shall be revised to
state as follows: "Effect of Certain Terminations and Resignations."
2. Section 1.1 of the Agreement shall be revised to state as follows:
"1.1 SEVERANCE COMPENSATION. If Employee's employment is
terminated without "cause," or Employee voluntarily resigns for
"good reason," then (i) JNI shall pay to Employee, on the normal
payroll dates of JNI during the twelve-month period commencing on
termination without "cause" or resignation for "good reason", severance
compensation in an amount equal to 12 months' base salary and (ii) all
options granted to Employee under JNI's stock option plans which, as of
the date of such termination without "cause" or voluntary resignation
for "good reason," remain unexercised and unvested, shall, to the
extent permissible by law, become immediately vested in full and
exercisable otherwise in accordance with the terms of the stock option
agreements relating to such options. Notwithstanding the foregoing, if
it is determined that the amounts payable to Employee under this
Agreement, when considered together with any other amounts payable to
Employee as a result of a Change of Control, cause such payments to be
treated as excess parachute payments within the meaning of Section 280G
of the Internal Revenue Code, JNI shall reduce the amount payable to
Employee under this Section 1.1 to an amount that will not subject
Employee to the imposition of tax under Section 4999 of the Internal
Revenue Code."
3. Section 1.4 of the Agreement shall be revised to state as follows:
"1.4 VOLUNTARY RESIGNATION FOR "GOOD REASON." Employee may
terminate her employment with JNI with "good reason" by serving notice
of her resignation to JNI with a description of the circumstances
giving rise to the good reason. "Good reason" means (i) a material
reduction in Employee's base salary (excluding bonus, employee benefits
and non-cash compensation) from the level in effect for Employee during
the prior year; (ii) any material diminution of Employee's titles,
responsibilities or duties with the Company; or (iii) the occurrence of
a Change of Control."
3. This Amendment may be executed in one or more counterparts, and by
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, including counterparts transmitted by
facsimile, but all of which taken together shall constitute one and the same
agreement.
4. On and after the date hereof, each reference in the Agreement to the
"Agreement" shall mean the Agreement as amended hereby. Except as specifically
amended above, the Agreement shall remain in full force and effect and is hereby
ratified and confirmed. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any party hereto, nor constitute a waiver of any
provision of the Agreement.
IN WITNESS HEREOF, the Parties have entered into this
Agreement as of the date first written above.
JNI CORPORATION
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Chief Executive Officer
EMPLOYEE:
/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
