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EXHIBIT 10.20
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
OF
XXXXX XXXXX
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT, is made as of the 4th day
of August, 1999 (the "Effective Date"), by and between WITNESS SYSTEMS, INC., a
Delaware corporation (the "Company") and XXXXX XXXXX ("Executive").
W I T N E S S E T H
WHEREAS, the Company and Executive are parties to that certain
Employment Agreement dated February 2, 1999 (the "Employment Agreement"); and
WHEREAS, the parties wish to amend the Employment Agreement to clarify
the intent of the parties with respect to the scope of the Company's obligations
under the Employment Agreement to pay a "Guaranteed Bonus" to Executive.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and other good and valuable consideration the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Except as otherwise expressly amended in this Amendment No. 1
to Employment Agreement, the Employment Agreement shall remain in full force and
effect and all provisions of the Employment Agreement not expressly modified by
this Amendment No. 1 to Employment Agreement are hereby incorporated by
reference and made an express part hereof.
2. Subsection 2A. of the Employment Agreement is hereby amended
by deleting Section 2A. in its entirety and substituting the following new
Section 2A. therefor:
A. Base Salary, Guaranteed Bonus and Supplemental Bonuses.
During the Term (as defined below), Company shall pay to Executive a
base salary ("Base Salary") of Two Hundred Twenty-Five Thousand and
No/100 Dollars ($225,000.00) per year (subject to annual review and
adjustment beginning in December 1999), payable in arrears in
accordance with the Company's standard payroll practices for senior
executives (but in no event less frequently than in equal semi-monthly
payments). In the event of a Disability, to the extent payments are
received under an employer-sponsored disability program, the payments
of Base Salary hereunder are to be reduced by an amount equal to such
disability payments. The Company shall pay to Executive a bonus (the
"Guaranteed Bonus") equivalent to the sum of the amount of interest due
and payable pursuant to that certain promissory note delivered to
Company by Executive effective March 31, 1999 in the principal amount
of $1,461,383.43 and the amount of interest due and payable pursuant to
that certain promissory note delivered to Company by Executive
effective August 4, 1999 in the principal amount of $337,050.00
(collectively, the "Notes"). The Guaranteed Bonus shall be payable
annually, with the first such payment being due and payable on the
first day of the
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first month in which interest is due and payable under either of the
Notes. Company's obligations to pay the Guaranteed Bonus pursuant to
this Section 2.A. shall continue for so long as interest remains due
and payable under either of the Notes, notwithstanding the earlier
termination of this Agreement or Executive's employment with Company.
In addition to the Guaranteed Bonus, Company shall pay to Executive a
lump sum bonus of $150,000.00 on March 31, 2000, a lump sum bonus of
$105,000.00 on March 31, 2001 and a lump sum bonus of $105,000.00 on
March 31, 2002 (collectively, the "Supplemental Bonuses"). Company's
obligations to pay the Supplemental Bonuses pursuant to this Section
2.A. shall continue notwithstanding the earlier termination of this
Agreement or Executive's employment with Company.
3. Section 4 of the Employment Agreement is hereby amended by
deleting Section 4 in its entirety and substituting the following new Section 4
therefor:
4. Term. The term of employment of Executive under this
Agreement shall be for a period of one (1) year (the "Term") commencing
on the date hereof and ending on the one (1) year anniversary thereof,
subject to earlier termination as provided in Section 5. Unless either
party provides written notice to the other party at least thirty (30)
days prior to the end of a Term, this Agreement shall automatically
renew for successive one (1) year Terms. Notwithstanding the foregoing,
Company's obligations to pay the Guaranteed Bonus pursuant to Section
2.A. shall continue for so long as interest remains due and payable
under either of the Notes and Company's obligations to pay the
Supplemental Bonuses pursuant to Section 2.A. shall continue
notwithstanding the earlier termination of this Agreement or
Executive's employment with Company.
4. Section 17 of the Employment Agreement is hereby amended by
deleting Section 4 in its entirety and substituting the following new Section 17
therefor:
17. Successors. This Agreement shall be binding upon and inure
to the benefit of the heirs, legal representatives, successors, and
permitted assigns of the parties. The obligations of Company pursuant
to this Agreement, including without limitation, Company's obligations
with respect to payment of the Guaranteed Bonus and the Supplemental
Bonuses pursuant to Section 2.A., shall be binding upon Company's
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and year first written above.
COMPANY: EXECUTIVE:
Witness Systems, Inc.
By: /s/ Xxx X. Xxxxxx /s/ Xxxxx Xxxxx
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Name: Xxx X. Xxxxxx Xxxxx Xxxxx
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Title: Chief Financial Officer
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