AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is dated as of the
14th day of November, 2000 (the "Date of this Amendment"), by and among VDC
COMMUNICATIONS, INC., a Delaware corporation (successor to VDC Corporation Ltd.,
a Bermuda company) (the "Company") and Xxxxxxxxx X. Xxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive entered into an Employment Agreement
(the "Original Employment Agreement") dated as of March 3, 1998;
WHEREAS, the Company and the Executive have amended the Original Employment
Agreement (the Original Employment Agreement as amended is the "Employment
Agreement"); and
WHEREAS, the parties wish to further amend the Employment Agreement as set
forth herein.
NOW THEREFORE, for and in consideration of TEN DOLLARS ($10.00), the
premises and the mutual covenants and agreements set forth in this Amendment and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
1. The following provision is hereby added to Section 1 of the Employment
Agreement:
f. The principal place of employment (the "Employment Place") of Executive
shall be within a fifty-five (55) mile radius of Greenwich, Connecticut or such
other location as is consented to in writing by the Executive. It is, however,
distinctly understood and agreed that Executive may be required, in connection
with the performance of his duties, to work from time to time (for up to 2
months a calendar year) at other locations designated by the Company's Board of
Directors. When required to travel to and/or spend time at such other locations,
Executive's reasonable traveling and temporary living expenses shall be
reimbursed to him by the Company.
2. The following provision is hereby added to Section 2 of the Employment
Agreement:
d. If a Change in Control Event (as defined in the Company's 1998 Stock
Incentive Plan, as amended, as it exists on the Date of this Amendment) occurs
after the Date of this Amendment, then at any time thereafter upon fifteen (15)
calendar days of a written request to the Company from the Executive, the
Company shall prepare, at the Company's expense, execute, and deliver to the
Executive for his execution, an amendment to all of the Executive's outstanding
Company stock option agreements (the "Option Amendment"). The Option Amendment
shall provide that the Company shall promptly take all action necessary, at the
Company's expense, to extend the post-employment termination option period of
the Executive's then vested Company stock options for two years from the date of
the termination of the Executive's employment with the Company. Notwithstanding
any other provision of this Agreement, the Executive shall have the right to
demand the Option Amendment for up to sixty (60) calendar days from the date of
the termination of the Executive's employment with the Company. The Executive
shall not have the right to make the demand referenced in this Section 2.e. at
any time after the termination of the Executive's employment for "cause" as
provided for in Section 5.a.
3. The following provision is hereby added to Section 5 of the Employment
Agreement:
f. Termination by Executive. At any time, the Executive may terminate this
Agreement by giving at least sixty (60) days' prior written notice to the
Company.
4. The following provision is hereby added to Section 5 of the Employment
Agreement:
g. Constructive Termination. If a Change in Control Event (as defined in
the Company's 1998 Stock Incentive Plan, as amended, as it exists on the Date of
this Amendment) occurs after the Date of this Amendment, and if, after the Date
of this Amendment, the Company changes the Executive's Place of Employment
(without the Executive's prior written consent) or substantially changes the
Executive's duties (without the Executive's prior written consent), then the
employment of the Executive, as his option, exercisable by written notice to the
Company at any time within ninety (90) calendar days from the change of the
Executive's Place of Employment or change in the Executive's duties, shall be
deemed to have been constructively terminated (a "Constructive Termination") by
the Company hereunder, as of the date of the Executive's notice. Upon a
Constructive Termination, the Company shall pay to the Executive: (i) an amount
equal to the Executive's Base Salary accrued through the effective date of
Constructive Termination at the rate in effect at the time of termination,
payable at the time such payment is due; (ii) a lump sum payment at the time of
Constructive Termination equal to one year's Base Salary, payable on the
effective date of Constructive Termination; and (iii) any expense reimbursement
amounts previously approved by the Company in writing, accrued to the date of
Constructive Termination.
5. The following provision is hereby added to Section 5 of the Employment
Agreement:
h. Opportunity to Resign or Declare Constructive Termination. If a Change
in Control Event (as defined in the Company's 1998 Stock Incentive Plan, as
amended, as it exists on the Date of this Amendment) occurs after the Date of
this Amendment, and if, after the Date of this Amendment the Company provides
the Executive with written notice of the facts and circumstances constituting
the basis for a for "cause" termination, then prior to the cure period provided
for in Section 5.a. beginning, the Executive shall have ten (10) calendar days
(the "Declaration Period") within which to either give notice of resignation (as
provided for in Section 5.f.) or to provide notice of Constructive Termination
(as provided for in Section 5.g.). If the Executive gives notice of resignation
or notice of Constructive Termination, and the Executive's employment is
accordingly terminated, then the notice of termination with "cause" shall be
without force or effect. However, if the Executive has not given notice of
resignation or notice of Constructive Termination during the Declaration Period,
then at the end of the Declaration Period the cure period provided for in
Section 5.a. shall commence.
6. ARBITRATION PROVISION. Section 10 of the Employment Agreement is hereby
amended to provide:
All controversies which may arise between the parties including, but not
limited to, those arising out of or related to this Agreement shall be
determined by binding arbitration applying the laws of the State of Delaware and
the rules of the American Arbitration Association applicable to the Commercial
Panel, except that there shall only be one (1) arbitrator. Any arbitration
between the parties shall be conducted at the Company's offices in Greenwich,
Connecticut, or at such other location in Greenwich, Connecticut designated by
the Company. The decision of the arbitrator shall be final and binding upon the
parties, and judgment may be obtained thereon by either party in a court of
competent jurisdiction. Each party shall bear the cost of preparing and
presenting its own case. The cost of the arbitration, including the fees and
expenses of the arbitrator, shall be shared equally by the parties hereto unless
the award otherwise provides. Nothing in this section will prevent either party
from resorting to judicial proceedings if interim injunctive relief under the
laws of the State of Delaware from a court is necessary to prevent serious and
irreparable injury to one of the parties, and the parties hereto agree that the
state courts in Stamford, Connecticut and the United States District Court in
the District of Connecticut in Bridgeport, Connecticut shall have exclusive
subject matter and in personam jurisdiction over the parties for purposes of
obtaining interim injunctive relief.
7. MISCELLANEOUS.
(a) Scope of Amendment. Other than as modified by this Amendment, the
Employment Agreement shall remain in full force and effect.
(b) Governing Law. This Amendment will be governed by the laws of the State
of Delaware without regard to conflict of law principles.
(c) Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed to be an original of this Amendment
and all of which, when taken together, will be deemed to constitute one and the
same Amendment.
(d) Facsimile Signature. This Amendment, and the counterparts thereof, may
be executed by facsimile signature.
(e) Rule of Construction. No rule of construction regarding interpretation
against the drafting party shall apply to the interpretation of this Amendment.
(f) Amendment Read and Understood. Both parties hereto acknowledge that
they have had an opportunity to consult with an attorney, and such other experts
or consultants as they deem necessary or prudent, regarding this Amendment and
that they, or their designated agents, have read and understand this Amendment.
(g) Modifications. This Amendment may be modified only by an agreement by
the parties in writing.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment
as of the date first above written.
Attest: VDC COMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Chief Financial Officer
Witness:
/s/ Xxxxx X. Read /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
