EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Amendment Number 1
THIS EMPLOYMENT AGREEMENT AMENDMENT NUMBER 1 ("Amendment")
dated as of January 1, 2005, effective as of January 24, 2005 (the "Effective
Date") is made between Xxxxxx Interactive Inc., a Delaware corporation
("Company"), and Xxxxxxx X. Xxxxx ("Executive"). This Amendment amends the
Employment Agreement between the Company and the Executive dated as of July 1,
2003 (the "Agreement").
1. Section 1.2(c) of the Agreement is hereby amended to
read in its entirety as follows:
Executive shall not be required to devote full time efforts to
the performance of Executive's duties hereunder, but will
devote approximately sixty percent of the time and efforts to
such duties as devoted by him prior to 2005. Executive will
perform his duties in a manner that will faithfully and
diligently further the business and interests of Company.
2. Section 2.1 of the Agreement shall remain in full
force and effect, and Executive's letter to the Company dated December 21, 2004
giving notice of termination is withdrawn and shall have no force and effect.
3. Section 3.1 of the Agreement is hereby amended to
read in its entirety as follows:
As compensation for Executive's services, Company shall pay to
Executive base compensation in the form of salary ("Base
Compensation") in the amount of $318,000 per annum. The salary
shall be payable in periodic installments in accordance with
Company's regular payroll practices for its executive
personnel at the time of payment, but in no event less
frequently than monthly. The Compensation Committee of the
Board shall review Base Compensation periodically for the
purpose of determining whether Base Compensation should be
adjusted; provided, however, that Executive's Base
Compensation shall not be less than the applicable amount set
forth in this Section 3.1.
4. Executive acknowledges that his eligibility for
performance bonuses under Section 3.2 will be decreased by 14% effective January
24, 2005. Such adjustment is intended to be in proportion to the decrease of his
Base Compensation (without accounting for adjustments related to elimination of
his automobile allowance) effective January 24, 2005.
5. Section 3.4 of the Agreement is deleted.
6. Section 4.4(b)(ii) of the Agreement is hereby amended
to read in its entirety as follows:
(ii) any decrease in Executive's salary as it may have
increased during the Term, except for decreases that are in
conjunction with decreases in executive salaries by the
Company generally and that do not result in a decrease in
Executive's annual salary below $318,000 per annum;
7. Section 5.4 of the Agreement is hereby amended to
read in its entirety as follows:
Consideration for Section 5 Covenants. As
consideration for Executive's agreement to be bound by the
obligations contained in this Section 5, Company shall pay
Executive the aggregate sum of Six Hundred Thousand Dollars
($600,000.00), payable in installments of $25,000 each due on
the first day of each month, commencing on the first day of
the first calendar month after the first to occur of (i) the
Company's termination of Executive's employment pursuant to
Section 4.2 or 4.3 of this Agreement, (ii) the Executive's
termination of his employment other than for Good Reason,
(iii) the Employee's death, and (iv) the end of the Term (as
it may have been extended pursuant to Section 2.1 of this
Agreement).
8. All other terms of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first above written.
XXXXXX INTERACTIVE INC.
By: /s/ Xxxxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
