PureDepth, Inc. Amendment No. 2 to Employment Agreement Andv Wood
Exhibit 10.01
Amendment No. 2 to Employment Agreement
Andv
Wood
PureDepth,
Inc. (the "Company") and Xxxx Xxxx ("Employee") are entering into this Amendment
No. 2 (the "Second Amendment") to the Employment Agreement made effective as of
August 27, 2008 (the "Initial Agreement"), this 3rd of
March 2010.
WHEREAS,
the Board of Directors of the Company and Employee have reviewed the scope of
Employee's anticipated role in 2010 determined that it is in the best interests
of the Company and Employee to modify certain expectations and obligations of
Employee, as provided below;
WHEREAS,
the Board of Directors and Company intend to review the terms of Employee's
employment agreement from time to time, and may agree upon further adjustments
as appropriate to reflect the nature of Employee's position;
THEREFORE,
the parties agree that the following terms will be effective as of March 1,
2010:
1.
Definitions.
Except as otherwise defined herein, all capitalized terms shall have the meaning
set forth in the Agreement.
2.
Employment
Commitment. Section 1 of the Initial Agreement is hereby amended and
restated in full to read as follows:
Employment. Company
hereby employs Employee, and Employee hereby accepts employment upon the terms
and conditions set forth herein. Employee's full-time employment with the
Company as its Chief Executive Officer (CEO) will commence on September 8, 2008
("Employment Date"). Beginning March 1, 2010, Employee will be expected to
devote at least ten full business days per month to Company
business
3.
Duties. Section
2.2 of the Initial Agreement is hereby amended and restated in full to read as
follows, effective
March 1, 2010:
Best Efforts.
Employee will expend Employee's best efforts on behalf of Company, and will
abide by all policies and decisions made by Company, as well as all applicable
federal, state and local laws, regulations or ordinances. In fulfilling his
responsibilities to the Company, it is anticipated that Employee will be
required to travel to New Zealand once per month on average. The secondment
agreement between Employee and PDIL is terminated by mutual agreement pursuant
to this amendment. The Company will pay the expense associated with determining
the financial aspects of the secondment on Company and Employee, and any
compensation to be exchanged between Company and Employee as a result
thereof.
4.
Compensation. Section
4.1 of the Initial Agreement is hereby amended and restated in full to read as
follows,
effective March 1, 2010:
Base Salary.
Beginning March 1, 2010. Employee shall receive a Base Salary of One Hundred
Twenty Five Thousand Dollars ($125,000.) per year, payable in accordance with
the normal payroll practices of Company, less required deductions for state and
federal withholding tax, social security and all other employment taxes and
payroll deductions. Employee will be expected to devote ten full days of work
per month to Company. In any calendar month in which Employee works twelve full
days, Employee shall receive an additional $1,000 salary supplement, which shall
be paid with the next payroll. Employee will not be paid any additional
compensation for working more than twelve days per calendar month, unless he
first obtains approval from the Chairman of the Compensation Committee to work
additional days, in which case Employee will be paid $1,000 for each additional
day above twelve worked in any month, to be paid with the next payroll, in the
event Employee's employment under this Agreement is terminated by either party,
for any reason. Employee will earn the Base Salary prorated to the date of
termination and will be subject to the provisions regarding termination set
forth below in section 8.
1
5.
Bonus. Section
4.2 of the Initial Agreement is hereby amended and restated in full to read as
follows, effective
March 1, 2010:
Performance-Based
Compensation Bonus. Employee will be eligible for consideration to
receive performance-based compensation {"Bonus") from time to time, after
consideration of Employee's contributions, and the Company's standing. The Board
shall determine, in its sole and absolute discretion, the amount, if any. Bonus
to be paid. The Board will consider the appropriateness of awarding Bonus
compensation to Employee at least annually and will solicit Employee's input to
the decision. There is no minimum guaranteed bonus, and the maximum potential
Bonus Employee will be eligible to earn on an annual basis is one-half of
Employee's annual salary, or Sixty-two Thousand. Five Hundred Dollars ($62,500).
payable at the Employee's election in either cash, a common stock award under
the Company's 2006 Stock Incentive Plan (the "Stock Plan") or a combination of
both. In the event that Company consummates a transaction involving a change of
ownership of the company, the Board, in its sole and absolute discretion, will
consider whether to provide Employee with additional bonus compensation that is
not subject to the maximum potential Bonus stated above. Any earned bonus will
be paid in accordance with normal company policy and
procedure.
6.
Vacation.
Section 5 of the Initial Agreement is hereby amended and restated in full to
read as follows, effective
March 1, 2010:
Customary Fringe
Benefits. Employee will be eligible for all customary and usual fringe
benefits, including medical, dental and vision coverage, or reimbursement of the
cost of coverage comparable to the benefits provided under the Company's plan,
if covered outside of the Company's plan, generally available to employees of
Company subject to the terms and conditions of Company's benefit plan documents
and policies. In addition. Employee shall be entitled to accrue two (2) weeks of
paid vacation on an annual basis, subject to the Company's vacation policy. The
Company reserves the right to change or eliminate the fringe benefits on a
prospective basis, at any time, effective upon notice to Employee. The Company
will also maintain D&O coverage.
7.
Business
Expenses. Section 6 of the Initial Agreement is hereby amended and
restated in full to read as follows,
effective March 1, 2010:
Business Expenses.
Employee will be reimbursed for all reasonable, out-of-pocket business expenses
incurred in the performance of Employee's duties on behalf of Company, including
but not limited to Employee's business related cellular phone and internet
charges and the reasonable costs of airfare, hotel, ground transportation and
meals for one trip to New Zealand per month for the performance of work duties.
To obtain reimbursement, expenses must be submitted promptly with appropriate
supporting documentation in accordance with Company's policies. Any
reimbursement Employee is entitled to receive shall (a) be paid in accordance
with the company's normal policy and procedures but in any event no later than
the last day of Employee's tax year following the tax year in which the expense
was incurred. (b) not be affected by any other expenses that are eligible for
reimbursement in any tax year and (c) not be subject to liquidation or exchange
for another benefit.
8.
Other
Activities. Section 7 of the Initial Agreement is hereby amended and
restated in full to read as follows,
effective March 1, 2010:
No Conflict of
Interest. During Employee's employment with Company. Employee must not
engage in any work, paid or unpaid, that creates an actual confiict of interest
with Company. Such work shall include, but is not limited to, directly or
indirectly competing with Company in any way, or acting as an officer, director,
employee, consultant, stockholder, volunteer, lender, or agent of any business
enterprise of the same nature as, or which is in direct competition with, the
business in which Company is now engaged or in which Company becomes engaged
during Employee's employment with Company, as may be determined by Company in
its sole discretion. If Company believes such a conflict exists, Company may ask
Employee to choose to discontinue the other work or resign employment with
Company.
2
Notwithstanding
the above, Employee may continue to serve on the boards of directors of two
entities on which he currently serves so long as such service does not interfere
with Employee's duties to the Company. In addition. Employee may pursue
part-time opportunities with other entities, provided that such entities do no compete with Company,
or otherwise conflict with Employee's duties to Company.
9.
Termination of
Employment. Section 8.4 of the Initial Agreement and Section 8.5 of the
February 20, 2009 Amendment
to that Initial Agreement, are hereby amended and restated in full to read as
follows, effective March 1, 2010:
Termination by the
Company Without Cause. If Employee's employment is terminated by
the Company Without Cause (as defined in Section 8.6 below) and the Employee
executes a full general release in a form reasonably acceptable to the Board,
releasing all claims, known or unknown, that Employee may have against Company
and any of its subsidiaries or agents and such release has become effective in
accordance with its terms prior to the 30th day following the effective date of
such termination, then, the Company shall pay to Employee, in accordance with
the Company's regular payroll schedule, commencing with the first payroll date
occurring at least 30 days following such effective date, an amount equal to
Employee's Base Salary rate slated in the Initial Agreement for a period of six
(6) months, payable to Employee in equal installments (the "Severance Period'"),
and the Company and Employee agree that for purposes of Section 409A, the
payments pursuant to this Section 8.4 shall be treated as a right to a series of
separate payments. The Company will take steps to ensure that sufficient cash is
"restricted" to cover this obligation.
Termination Without Cause
Following a Change of Control. 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 (as defined below), then subject to
Employee's execution of a full general release in a form reasonably acceptable
to the Board, releasing all claims, known or unknown, that Employee may have
against Company and any of its subsidiaries or agents, and such release has
become effective in accordance with its terms prior to the 30th day following
the effective date of such termination, then: (a) the Company shall pay to
Employee, in accordance with the Company's regular payroll schedule, commencing
with the first payroll date occurring at least 30 days following the Termination
Date, an amount equal to Employee's Base Salary rate stated in the Initial
Agreement for a period of six (6) months, payable to Employee in equal
installments for the Severance Period; and (b) Employee shall become vested in
100% of the shares subject to his Option and any subsequent options to purchase
the Company's common stock granted to him.
10. Application of Section
409A.
(a) Notwithstanding
anything set forth in the Agreement, as amended hereby (the ''Second
Amendment'') to the contrary, no amount payable pursuant to the Second Amendment
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 Second
Amendment will not be subject to taxation under Section 409A of the Code. The
provisions of the Second Amendment 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 Amended 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 Second Amendment.
3
11.
Continuation of Other
Terms. Except as set forth herein, all other terms and conditions of the
Initial Agreement
and the February 20, 2009 Amendment to that Initial Agreement shall remain in
full force and effect.
| PureDepth, Inc. | Acknowledged, Accepted and Agreed | |||
|
/s/
Xxxx Xxxxx
|
/s/
Xxxxxx Xxxx
|
|||
|
Member,
Board of Directors
Compensation Committee
|
Xxxxxx
X. Xxxx
|
CONTACT:
Xxx
Xxxxxx
Xxxxxxx
& Fox for Pure Depth
x0 000
000 0000
xxxxxxx@xxxxxxxxxx.xxx
4
