EXHIBIT 10.1(o)
SECOND EXTENSION TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Second Extension To Amended And Restated Employment Agreement entered
into as of the 1st day of July, 2000 (this "Amendment"), by and between
XxxXxxx.xxx, Inc., a Delaware corporation (the "Company") and Xxxx X. Xxxxx (the
"Employee").
The Company and the Employee have entered into an Amended and Restated
Employment Agreement (the "Employment Agreement"), dated as of July 1, 1998 as
amended by the First Extension to Amended And Restated Employment Agreement,
dated as of December 31, 1998, and the Company and the Employee desire to amend
and extend the Employment Agreement.
A. Section 1 of the Employment Agreement shall be deleted in its entirety, as
of the date hereof, and replaced with the following language:
"1. Term: The term of this Agreement shall be for a period commencing July
1, 1998 and automatically terminating on December 31, 2004, subject to
earlier termination as provided herein or unless extended by mutual
consent of both parties in writing ninety (90) days prior to the end of
the term of this Agreement or any extension thereof, but nothing herein
shall require the Company or Employee to agree to any specific term or
condition or to any continuation of Employee's employment beyond the end
of the term of this Agreement."
B. Section 3 of the Employment Agreement shall be deleted in its entirety, as
of the date hereof, and replaced with the following language:
"3.1 Compensation:
[A] During the Term of this Agreement, the Company agrees to pay
Employee, and Employee agrees to accept a salary, at an annual rate as
follows (in each case payable at least every two weeks, less all
applicable taxes, for all services rendered by Employee hereunder):
$82,500 from July 1, 1998 through December 31, 1998; and $100,000 from
January 1, 1999 through June 30, 2000; and, subject to this Section
3.1[A], $150,000 from July 1, 2000 through December 31, 2004. Employee's
annual salary shall automatically increase at a rate of five (5%) percent
per annum commencing January 1, 2001. In addition, Employee's annual
salary and other benefits provided for hereunder
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EXHIBIT 10.1(o)
are subject to periodic increases (but not decreases) at the discretion of
the Board of Directors. As additional compensation, the Company may pay
the Employee periodic bonuses as determined by the Board of Directors.
[B] Employee and the Company agree that the accrued salary owed
Employee as of June 30, 2000 in the amount of Ninety One Thousand Nine
Hundred Seventy Seven Dollars and Sixty Seven Cents ($91,977.67) shall be
paid as follows:
[1] The Company shall pay the Employee Forty One Thousand Nine
Hundred Seventy Seven Dollars and Sixty Seven Cents ($41, 977.67) in
twenty four (24) monthly payments, less all applicable taxes, on the last
payroll date of each month commencing July 2000 and ending June 2002, in
the amount of One Thousand Seven Hundred Forty Nine Dollars ($1,749.00)
for the first twenty three (23) months, and One Thousand Seven Hundred
Fifty Dollars and Sixty Seven Cents ($1,750.67) for the twenty fourth (24)
month; and
[2] If the Company consummates an offering of its debt or equity
securities which results in gross proceeds of at least $2,000,000 by
December 31, 2000, then in consideration of the balance of Fifty Thousand
Dollars ($50,000), the Company hereby agrees to issue, and Employee agrees
to accept, 100,000 shares of its Common Stock, $.001 par value per share
(the "Shares"). If the Company does not complete a debt or equity
securities offering of $2,000,000 by December 31, 2000, the accrued salary
shall be paid on July 1, 2001. If the Company issues Shares, the
certificate representing the Shares shall contain the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THEY MAY NOT BE OFFERED OR TRANSFERRED BY SALE, ASSIGNMENT,
PLEDGE OR OTHERWISE UNLESS (I) A REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OF 1933 IS IN EFFECT OR (II) THE
COMPANY HAS RECEIVED AN OPINION OF COUNSEL, WHICH OPINION IS
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
[3] Employee (a) represents and warrants to Company that he is
acquiring all of the Shares to be issued to him pursuant to the provisions
of this Amendment for Employee's own account and for the purposes of
investment and not with a view to, or for sale in connection with, any
distribution thereof and (b) agrees that he will not at anytime sell or
otherwise transfer, or permit the sale or other transfer of, such Shares
other than in
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EXHIBIT 10.1(o)
transactions that are not in violation of the Securities Act of 1933, as
amended, or the provisions of any other applicable securities laws, rules
or regulations."
C. Effect of this Amendment. This constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all
prior oral or written communications, memoranda, proposals, negotiations,
discussions and commitments with respect to the subject matter hereof.
Except as otherwise expressly provided herein, no other changes or
modifications to the Employment Agreement are intended or implied, and in
all other respects the Employment Agreement is hereby specifically
ratified, restated and confirmed by all parties hereto as of the effective
date hereof. To the extent that any provision of the Employment Agreement
conflicts with any provision of this Amendment, the provision of this
Amendment shall control.
D. Assignability. The respective rights and obligations of the Employee and
the Company under this Amendment and the Employment Agreement shall insure
to the benefit of and be binding upon the heirs and legal representatives
of the Employee and the successors and assigns of the Company.
E. Miscellaneous. This Amendment is to be construed and enforced in
accordance with the internal substantive laws of the State of New York,
irrespective of the principles of conflicts of law. The waiver of any
breach of this Amendment by any party shall not be construed as a wavier
of any subsequent breach by any party. This Amendment may not be changed
orally, but only by an agreement in writing signed by the parties to this
Amendment.
IN WITNESS WHEREOF, the Employee has executed this Amendment and the
Company has caused this Amendment to be executed by a duly authorized officer
and to become effective as of the day and year first above written.
XxxXxxx.xxx, Inc.
By: /s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxx
--------------------------------- ---------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxx
Title: Executive Vice President Employee
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