AMENDMENT TO EMPLOYMENT AGREEMENT (John A. Elwood)
Exhibit 10.2
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made as of June 29, 2011, by and
between XXXX X. XXXXXX (“Executive”) and XXXXX INSTRUMENTS CORP., a Delaware corporation (the
“Company”).
RECITALS
A. WHEREAS, Executive and the Company entered into that certain Employment Agreement dated as
of February 1, 2010 (the “Agreement”); and
B. WHEREAS, the parties hereto desire to amend the Agreement as set forth herein and, except
as otherwise expressly provided in this Amendment, all capitalized terms used herein shall have the
same meanings as set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments. Paragraph (b) of Section 4 of the Agreement is hereby amended and
restated in its entirety to read as follows:
“(b) Incentive Compensation.
(i) Executive shall also be entitled to a cash bonus if certain
targets are achieved. The calculation of such cash bonus amount
shall be determined by the Company’s compensation committee within
the first sixty (60) days of each fiscal year; provided, however,
that for the Company’s FY2012 the cash bonus shall be calculated as
set forth in Section 4(b)(ii) below.
(ii) Executive shall receive a cash bonus, if any, based on the
Company’s EBITDA for FY2012 according to the following table:
| EBITDA | Bonus | |||
> $112,000 < $224,000 |
$ | 8,500 | ||
> $224,000 < $336,000 |
$ | 17,000 | ||
> $336,000 < $448,000 |
$ | 25,500 | ||
> $448,000 < $560,000 |
$ | 34,000 | ||
> $560,000 |
$ | 42,500 | ||
Any such cash bonus shall be paid to Executive prior to April 15,
2012. For purposes of this Agreement, the following terms shall
have the following meanings:
“FY2012” means the Company’s fiscal year ending February 28,
2012.
“EBITDA” means an amount equal to the Net Income (without taking
into account any payment to Executive under this Section 4(b)(ii) and
any bonus payment to Xxxxxx Xxxxxxx) for FY2012 plus the provision
for interest, income taxes and plus the amount of Non-Cash Items.
“Net Income” means the Company’s net income as determined in
accordance with generally accepted accounting principles in the
United States, determined on a consistent basis).
“Non-Cash Items” means the following items to the extent
included in Net Income for FY2012:
| (A) | depreciation and amortization
expense; |
| (B) | stock-based compensation expense;
and |
| (C) | impairment of
inventory, goodwill and/or intangibles charges. |
(iii) If Executive is terminated by the Company for any reason
or Executive voluntarily terminates his employment for any reason at
any time prior to end of FY2012, Executive shall not be entitled to
any payment under Section 4(b)(ii); provided, however, if after
November 1, 2011, Executive is terminated by the Company without
Cause, he terminates his employment for Good Reason, he dies, he
suffers a Disability, or this Agreement is not renewed by the
Company, then the Company shall pay Executive or his estate (in the
case of his death) any payment which would be due and payable under
Section 4(b)(ii) as if he had remained employed by the Company
throughout the end of FY2012.”
2. Effect of Amendment. Except to the extent modified by this Amendment, the
Agreement remains in full force and effect. If any provisions of this Amendment contradicts or is
inconsistent with any provision of the Agreement, then the provisions of this Amendment shall
prevail.
3. Miscellaneous. This Amendment, and all disputes between the parties under or
related to this Amendment or the facts and circumstances leading to its execution, whether in
contract, tort or otherwise, will be governed by and construed in accordance with the laws of the
State of California without regard to conflicts of laws principles. This Amendment and the
Agreement constitute the full and entire understanding and agreement among the parties with
regard to the subjects hereof and supersedes all prior written and oral agreements, representations
and commitments, if any, among the parties with respect to such subjects. This Amendment may be
executed in any number of counterparts, each of which will be an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment effective as of the date first
written above, which date for all purposes shall be considered to be the date of this Amendment.
| “EXECUTIVE” | ||||||
| /s/ XXXX X. XXXXXX | ||||||
| Xxxx X. Xxxxxx | ||||||
| “COMPANY” | ||||||
| XXXXX INSTRUMENTS CORP., a Delaware corporation | ||||||
| By: | /s/ XXXXXX X. XXXXXXX
|
|||||
| Chief Executive Officer | ||||||
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