Current Report

Exhibit 10.1

 

EXECUTION VERSION

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (the “ Amendment ”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the " Company ") and Robert V. LaPenta (hereinafter referred to as the " Executive ") and amends that certain Employment Agreement dated as of August 29, 2006 between Viisage Technology, Inc. and the Executive (the " Agreement "), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1.             Section 1 of the Agreement is amended in its entirety as follows:

 

“ 1.          Term. The initial term of this Agreement (the “ Initial Term ”) shall commence as of August 29, 2009, and continue for three years ending on August 29, 2012 (unless this Agreement is terminated earlier in accordance with Section 10 below). Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “ Term .””

2.             Sections 4(a) and (b) of the Agreement are amended in their entirety as follows:

“ (a)    Base Salary. The Executive will receive salary at an initial annual base rate of $785,000 (the “ Base Salary ”), payable in equal increments not less often than monthly in arrears and in any event consistent with the Company’s payroll policy and practices. In addition, the Board shall perform an annual review of Executive’s performance and, in its sole discretion, may make appropriate adjustments in Executive’s base salary (it being understood that any reduction in such base salary shall constitute Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Executive shall receive a lump sum payment in respect of all such retroactive adjustments.

(b)      Bonus. The Executive will be eligible for annual bonuses (the “ Bonus ”) with a target amount of 75% of his Base Salary. The actual amount of any Bonus may be more or less than such target and shall be determined by the Board based on the achievement of corporate and individual objectives determined by the Board on an annual

 

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basis, in its absolute discretion. If a Bonus is awarded, at the election of the Executive, the Bonus may be paid in full or in part in unregistered common stock, par value $0.001 per share, of the Company (“ Common Stock ”), at a price per share equal to the weighted average closing price per share of the Common Stock over the twenty most recent trading days on the principal exchange or market on which the Common Stock is listed (as reported in the Wall Street Journal ) at the same time as bonuses are paid to the other members of management of the Company. However, the Executive may not elect to receive the Bonus in Common Stock to the extent that immediately after the issuance of such Common Stock, Executive, together with his Affiliates and Associates (each as defined pursuant to Section 203 of the Delaware General Corporation Law, or “ Section 203 ”), would beneficially own, as determined pursuant to Section 203(c)(9), 15% or more of the outstanding voting securities of the Company. In the event the Executive elects to receive all or any portion of any Bonus in shares of Common Stock, the payment of such shares shall be deferred at the Executive’s election by crediting such shares to a notional account with the Company and shall be distributed from such account upon the later of (i) the date designated (to the extent consistent with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”)) by the Executive with respect to such bonus or (ii) the earliest to occur of the 30 ^th day after the first anniversary of the date that annual bonuses are paid in cash or would have been paid to the other members of management of the Company, or the Executive’s death, disability or termination of employment. Unless otherwise subject to a deferral election by the Executive which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Executive’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

“(c)       Benefits. In addition to the Base Salary and any Bonus, the Executive will be entitled to receive health, welfare and fringe benefits that are generally available to the Company’s management employees in accordance with the then existing terms and conditions of the Company’s policies. The Company’s current fringe benefits for management employees are set forth on Exhibit A hereto. The Executive will be entitled to reimbursement of all reasonable expenses incurred by him in his performance of services on behalf on the Company hereunder, subject to the presentation of appropriate documentation and other reimbursement policies generally applicable to the Company’s management employees. So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Executive, (i) no benefit or payment due to the Executive in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or

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before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.”

4.              Sections 10(c)(ii) and (iii) of the Agreement are amended in their entirety as follows:

“ (ii) Without Cause or For Good Reason. If the Executive’s engagement hereunder is terminated by the Company without Cause or by the Executive for Good Reason, the Executive shall receive the following: (A) the payments and benefits described in Section 10(c)(i) above, (B) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase Common Stock and other stock-based awards for the benefit of Executive granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option) and/or all restrictions on such stock-based awards shall lapse, as applicable, (C) an amount equal to the Bonus awarded to the Executive for the most recent completed calendar year (a “ Completed Year ”) for which a Bonus was determined by the Board and, in the event of a termination by the Company without Cause or by the Executive for Good Reason occurring after a Completed Year but prior to the determination by the Board of the Bonus for the Completed Year, a Bonus for the Completed Year in an amount not less than the target Bonus provided by Section 4(b) above, and (D) an amount equal to the Base Salary that would have been payable during the 24 month period following the date of termination, at the rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the termination by the Company without Cause or by the Executive for Good Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Executive’s medical, dental and vision benefits (or pay Executive an amount equivalent to such COBRA payments) and shall make payments to continue Executive’s term life insurance (or pay Executive an amount equivalent to the premiums in effect prior to termination). Subject to Section 10(f), any amounts payable under subsections (C) and (D) above shall be paid as follows: 50% within five business days of the termination date and 50% on the next business day after the six month anniversary of the termination date, and each such payment is hereby designated a “separate payment” for purposes of Section 409A of the Code.

(iii)        Death or Disability . If the Executive’s engagement hereunder is terminated because of death or Disability, he (or his legal representatives or heirs) shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause; provided, however , that solely for the purpose of payments due as a result of this Section 10(c)(iii), the amounts payable under subsections 10(c)(ii)(C) and (D) shall be reduced to the extent of any amounts, net of tax, actually paid to the Executive (or his legal representatives or heirs) under any Company-provided life insurance, disability insurance or other similar Company-provided insurance policies or benefits in effect from time to time.

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5.             Section 10(c)(iv) is amended to eliminate the following parenthetical phrase: “(except that the pre and post termination Bonus shall be based on the target amount in effect on the date of termination)”.

6.             The following new Section 10(c)(v) is added to the Agreement:

“ (v)       Non-Renewal of Term . If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Executive shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause.”

 

7.              The following new Section 10(d)(iv) is added to the Agreement:

 

“ (iv)     So as to avoid the application of Section 409A to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

8.             The following new Section 25 is added to the Agreement:

 

“ 25.       Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Executive under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

 

9.             In the event of any inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

 

[Signature Page Follows]

 

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This agreement has been executed and delivered as of the date first above written.

L-1 IDENTITY SOLUTIONS, INC.

EXECUTIVE

 

 

 

 

 

 

Exhibit 10.2

 

EXECUTION VERSION

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (the “ Amendment ”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the " Company ") and James A. DePalma (hereinafter referred to as the " Executive ") and amends that certain Employment Agreement dated as of August 29, 2006 between Viisage Technology, Inc. and the Executive (the " Agreement "), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1. Section 1 of the Agreement is amended in its entirety as follows:

 

“ 1.          Term. The initial term of this Agreement (the “ Initial Term ”) shall commence as of August 29, 2009, and continue for three years ending on August 29, 2012 (unless this Agreement is terminated earlier in accordance with Section 10 below). Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “ Term .””

2. Sections 4(a) and (b) of the Agreement are amended in their entirety as follows:

“(a)    Base Salary. The Executive will receive salary at an initial annual base rate of $395,000 (the “ Base Salary ”), payable in equal increments not less often than monthly in arrears and in any event consistent with the Company’s payroll policy and practices. In addition, the Board shall perform an annual review of Executive’s performance and, in its sole discretion, may make appropriate adjustments in Executive’s base salary (it being understood that any reduction in such base salary shall constitute Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Executive shall receive a lump sum payment in respect of all such retroactive adjustments.

(b)    Bonus. The Executive will be eligible for annual bonuses (the “ Bonus ”) with a target amount of 60% of his Base Salary. The actual amount of any Bonus may be more or less than such target and shall be determined by the Board based on the achievement of corporate and individual objectives determined by the Board on an annual

 

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basis, in its absolute discretion. If a Bonus is awarded, at the election of the Executive, the Bonus may be paid in full or in part in unregistered common stock, par value $0.001 per share, of the Company (“ Common Stock ”), at a price per share equal to the weighted average closing price per share of the Common Stock over the twenty most recent trading days on the principal exchange or market on which the Common Stock is listed (as reported in the Wall Street Journal ) at the same time as bonuses are paid to the other members of management of the Company. However, the Executive may not elect to receive the Bonus in Common Stock to the extent that immediately after the issuance of such Common Stock, Executive, together with his Affiliates and Associates (each as defined pursuant to Section 203 of the Delaware General Corporation Law, or “ Section 203 ”), would beneficially own, as determined pursuant to Section 203(c)(9), 15% or more of the outstanding voting securities of the Company. In the event the Executive elects to receive all or any portion of any Bonus in shares of Common Stock, the payment of such shares shall be deferred at the Executive’s election by crediting such shares to a notional account with the Company and shall be distributed from such account upon the later of (i) the date designated (to the extent consistent with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”)) by the Executive with respect to such bonus or (ii) the earliest to occur of the 30 ^th day after the first anniversary of the date that annual bonuses are paid in cash or would have been paid to the other members of management of the Company, or the Executive’s death, disability or termination of employment. Unless otherwise subject to a deferral election by the Executive which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Executive’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

3. The following sentence is added as the final sentence of Section 4(c) of the Agreement:

“So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Executive, (i) no benefit or payment due to the Executive in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.”

4. Sections 10(c)(ii) and (iii) of the Agreement are amended in their entirety as follows:

“ (ii) Without Cause or For Good Reason. If the Executive’s engagement hereunder is terminated by the Company without Cause or by the Executive for Good Reason, the Executive shall receive the following: (A) the payments and benefits described in Section

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10(c)(i) above, (B) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase Common Stock and other stock-based awards for the benefit of Executive granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option) and/or all restrictions on such stock-based awards shall lapse, as applicable, (C) an amount equal to the Bonus awarded to the Executive for the most recent completed calendar year (a “ Completed Year ”) for which a Bonus was determined by the Board and, in the event of a termination by the Company without Cause or by the Executive for Good Reason occurring after a Completed Year but prior to the determination by the Board of the Bonus for the Completed Year, a Bonus for the Completed Year in an amount not less than the target Bonus provided by Section 4(b) above, and (D) an amount equal to the Base Salary that would have been payable during the 24 month period following the date of termination, at the rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the termination by the Company without Cause or by the Executive for Good Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Executive’s medical, dental and vision benefits (or pay Executive an amount equivalent to such COBRA payments) and shall make payments to continue Executive’s term life insurance (or pay Executive an amount equivalent to the premiums in effect prior to termination). Subject to Section 10(f), any amounts payable under subsections (C) and (D) above shall be paid as follows: 50% within five business days of the termination date and 50% on the next business day after the six month anniversary of the termination date, and each such payment is hereby designated a “separate payment” for purposes of Section 409A of the Code.

(iii)        Death or Disability . If the Executive’s engagement hereunder is terminated because of death or Disability, he (or his legal representatives or heirs) shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated without Cause; provided, however , that solely for the purpose of payments due as a result of this Section 10(c)(iii), the amounts payable under subsections 10(c)(ii)(C) and (D) shall be reduced to the extent of any amounts, net of tax, actually paid to the Executive (or his legal representatives or heirs) under any Company-provided life insurance, disability insurance or other similar Company-provided insurance policies or benefits in effect from time to time.”

5. Section 10(c)(iv) is amended to eliminate the following parenthetical phrase: “(except that the pre and post termination Bonus shall be based on the target amount in effect on the date of termination)”.

6. The following new Section 10(c)(v) is added to the Agreement:

(v)         Non-Renewal of Term . If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Executive shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause.”

 

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7. The following new Section 10(d)(iv) is added to the Agreement:

 

“ (iv)     So as to avoid the application of Section 409A of the Code to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

8. The following new Section 25 is added to the Agreement:

 

“ 25.       Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Executive under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

 

9. In the event of any inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

 

[Signature Page Follows]

 

 

 

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This Agreement has been executed and delivered as of the date first above written.

 

 

EXECUTIVE

 

 

 

 

 

 

 

Exhibit 10.3

 

EXECUTION VERSION

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (this “Amendment”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the "Company") and Joseph Atick (hereinafter referred to as the "Employee") and amends that certain Employment Agreement dated August 29, 2006 between L-1 Identity Solutions, Inc. (now named L-1 Identity Solutions Operating Company). and the Employee (the "Agreement"), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1. Section 2.2 of the Agreement is amended and restated in its entirety as follows:

 

“2.2 Term . The term of employment of Employee by the Company under this Agreement shall commence on August 29, 2009 (the “Initial Term”) and continue for three years ending on August 29, 2012, unless earlier terminated as provided in this Agreement. Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “Term.””

2. Section 2.4 of the Agreement is amended and restated in its entirety as follows:

“2.4 [Reserved]”

3. Section 2.5 of the Agreement is amended and restated in its entirety as follows:

“(a) Notwithstanding anything else in this Agreement, the Company may effect a Termination Other Than For Cause at any time upon written notice to Employee of such termination, and Employee may effect a Resignation for Good Reason in accordance with procedures set forth in Section 2.1(f). Upon the effective date of any Termination Other Than For Cause or Resignation for Good Reason Employee shall immediately be paid all earned but unpaid salary and all awarded but unpaid bonus for any completed calendar year (a “Completed Year”), and all accrued but unpaid vacation pay, all to the effective date of termination. In addition, Employee shall receive the following: (A) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase common stock and other stock-based awards for the benefit of Employee granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option)

 

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and/or all restrictions on such stock-based awards shall lapse, as applicable, (B) an amount equal to the bonus awarded to the Employee for the most recent Completed Year for which a bonus was determined by the Board of Directors of the Company and, in the event of a Termination Other Than for Cause or Resignation for Good Reason occurring after a Completed Year but prior to the determination by the Board of Directors of the Company of the bonus for the Completed Year, a bonus for the Completed Year in an amount not less than the target bonus referenced in Section 3.2 and set forth on Schedule A , and (C) an amount equal to 24 months of base salary, at the monthly base salary rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the Termination Other Than for Cause or Resignation for Good Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Employee’s medical, dental and vision benefits (or pay Employee an amount equivalent to such COBRA payments) and shall make payments to continue Employee’s term life insurance (or pay Employee an amount equivalent to the premiums in effect prior to termination). Any amounts payable under subsections (B) and (C) above shall be paid as follows: (i) so as to avoid the application of Section 409A of the Code to such amounts, in the case of an effective date of Termination Other Than For Cause or Resignation for Good Reason prior to January 1, 2010, the method of payment provided in this Agreement before the date of this Amendment and (ii) in the case of an effective date of Termination Other Than For Cause or Resignation for Good Reason during the Term on or after January 1, 2010, 50% within five business days of the termination date and 50% on the first business day following the six month anniversary of the termination date, and each such payment is hereby designated a “separate payment” for purposes of Section 409A. Employee shall not be paid any other compensation or reimbursement of any kind, other than as required by law or pursuant to the Company’s benefit plans or reimbursement of expenses incurred as of the effective date of termination in accordance with Company policy.

(b)       If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Employee shall be entitled to all of the payments and benefits described in Section 2.5(a) above as if the Company had effected a Termination Other Than For Cause.

(c)       If the Employee’s engagement hereunder is terminated because of Death or Disability, he (or his legal representatives or heirs) shall be entitled to all of the payments and benefits described in Section 2.5(a) above as if the Company had effected a Termination Other Than For Cause; provided, however , that solely for the purpose of payments due as a result of this Section 2.5(c), the amounts payable under subsections 2.5(a)(B) and (C) shall be reduced to the extent of any amounts, net of tax, actually paid to the Employee (or his legal representatives or heirs) under any Company-provided life insurance, disability insurance or other similar Company-provided insurance policies or benefits in effect from time to time.”

4. Section 2.6(a) of the Agreement is amended and restated in its entirety as follows:

“(a) [Reserved]”

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5. The following new Section 2.6(i) is added to the Agreement:

 

“ (i)       So as to avoid the application of Section 409A of the Code to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

6. The Initial Annual Base Salary stated on Schedule A to the Agreement and referred to in Section 3.1 of the Agreement is restated as "$400,000.”

7. The first sentence with respect to the Annual Bonus stated on Schedule A to the Agreement and referred to in Section 3.2 of the Agreement is restated as "Employee shall be eligible for annual bonuses with a target amount of 60% of his base salary.” In addition, a new final sentence is added to Section 3.2 of the Agreement as follows:

“Unless otherwise subject to a deferral election by the Employee which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Employee’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

8. A new final sentence is added to Section 3.3 of the Agreement as follows:

“So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Employee, (i) no benefit or payment due to the Employee in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or before the last day of the Employee’s taxable year following the taxable year in which the expense was incurred.”

9. Section 4 of the Agreement is amended and restated in its entirety as follows:

“4. Annual Performance Review . The Board of Directors of the Company shall perform an annual review of Employee’s performance and, in its sole discretion, may make appropriate adjustments in Employee’s annual base salary and determine whether additional equity based compensation awards should be granted (it being understood that any reduction in such annual base salary shall constitute Resignation for Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base

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Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Employee shall receive a lump sum payment in respect of all such retroactive adjustments.”

“ 6.10.    Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Employee under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

 

11. In the event of any inconsistency between the terms of the Agreement, including Schedule A thereto, and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

 

[Signature Page Follows]

 

 

 

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This Agreement has been executed and delivered as of the date first above written.

 

 

EXECUTIVE

 

 

 

 

 

 

 

 

Exhibit 10.4

 

EXECUTION VERSION

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (this “Amendment”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the "Company") and Mark S. Molina (hereinafter referred to as the "Employee") and amends that certain Employment Agreement dated August 29, 2006 between Viisage Technology, Inc. and the Employee (the "Agreement"), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1. Section 2.2 of the Agreement is amended and restated in its entirety as follows:

 

“2.2 Term . The term of employment of Employee by the Company under this Agreement shall commence on August 29, 2009 and continue for three years ending on August 29, 2012 (the “Initial Term”), unless earlier terminated as provided in this Agreement. Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “Term.””

2. Section 2.4 of the Agreement is amended and restated in its entirety, as follows:

“(a) Notwithstanding anything else in this Agreement, the Company may effect a Termination Other Than For Cause at any time after giving at least thirty (30) days notice to Employee of such termination or pay in lieu of such notice, and Employee may effect a Resignation for Good Reason in accordance with procedures set forth in Section 2.1(b). Upon the effective date of any Termination Other Than For Cause or Resignation for Good Reason Employee shall immediately be paid all earned but unpaid salary and all awarded but unpaid bonus for any completed calendar year (a “Completed Year”), and all accrued but unpaid vacation pay, all to the effective date of termination. In addition, Employee shall receive the following: (A) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase common stock and other stock-based awards for the benefit of Employee granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option) and/or all restrictions on such stock-based awards shall lapse, as applicable, (B) an amount equal to the bonus awarded to the Employee for the most recent Completed Year for which a bonus was determined by the Board of Directors of the Company and, in the event of a Termination Other Than for Cause or Resignation for Good Reason occurring after a Completed Year but prior to the determination by the Board of Directors of the Company of the bonus for the Completed Year, a bonus for the

 

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Completed Year in an amount not less than the target bonus referenced in Section 3.2 and set forth on Schedule A , and (C) an amount equal to 24 months of base salary, at the monthly base salary rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the Termination Other Than for Cause or Resignation for Good Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Employee’s medical, dental and vision benefits (or pay Employee an amount equivalent to such COBRA payments) and shall make payments to continue Employee’s term life insurance (or pay Employee an amount equivalent to the premiums in effect prior to termination). Any amounts payable under subsections (B) and (C) above shall be paid as follows: (i) so as to avoid the application of Section 409A of the Code to such amounts, in the case of an effective date of Termination Other Than For Cause or Resignation for Good Reason prior to January 1, 2010, the method of payment provided in this Agreement before the date of this Amendment, and (ii) in the case of an effective date of Termination Other Than For Cause or Resignation for Good Reason during the Term on or after January 1, 2010, 50% within five business days of the termination date and 50% on the first business day following the six month anniversary of the termination date, and each such payment is hereby designated a “separate payment” for purposes of Section 409A. Employee shall also receive such other benefits, if any, as are set forth on Schedule A , but Employee shall not be paid any other compensation or reimbursement of any kind, other than as required by law or pursuant to the Company’s benefit plans or reimbursement of expenses incurred as of the effective date of termination in accordance with Company policy. If any Termination Other Than For Cause is the result of the death of Employee, all payments payable under this Section 2.4 (other than life insurance benefits) shall be paid to Employee’s heirs or legal representative.

(b)       If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Employee shall be entitled to all of the payments and benefits described in Section 2.4(a) above as if the Company had effected a Termination Other Than For Cause.”

3. Section 2.6(a) of the Agreement is amended and restated in its entirety as follows:

“(a) [Reserved]”

4. The following new Section 2.6(b)(vii) is added to the Agreement:

 

“ (iv)     So as to avoid the application of Section 409A of the Code to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

5. The Initial Annual Base Salary stated on Schedule A to the Agreement and referred to in Section 3.1 of the Agreement is restated as "$345,000."

6. The first sentence with respect to the Annual Bonus stated on Schedule A to the Agreement and referred to in Section 3.2 of the Agreement is restated as "Employee shall be eligible for

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annual bonuses with a target amount of 60% of his base salary." In addition, a new final sentence is hereby added to Section 3.2 of the Agreement as follows:

“Unless otherwise subject to a deferral election by the Employee which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Employee’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

7. A new final sentence is added to Section 3.3 of the Agreement as follows:

“So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Employee, (i) no benefit or payment due to the Employee in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or before the last day of the Employee’s taxable year following the taxable year in which the expense was incurred.”

8. Section 4 of the Agreement is amended and restated in its entirety as follows:

“4. Annual Performance Review . The Board of Directors of the Company shall perform an annual review of Employee’s performance and, in its sole discretion, may make appropriate adjustments in Employee’s annual base salary and determine whether additional equity based compensation awards should be granted (it being understood that any reduction in such annual base salary shall constitute Resignation for Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Employee shall receive a lump sum payment in respect of all such retroactive adjustments.”

9. Section 6.10 of the Agreement is amended and restated in its entirety as follows:

“ 6.10.    Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Employee under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued

 

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after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

 

10. In the event of any inconsistency between the terms of the Agreement, including Schedule A thereto, and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

[Signature Page Follows]

 

 

 

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This agreement has been executed and delivered as of the date first above written.

 

 

EXECUTIVE

 

 

 

 

 

 

 

Exhibit 10.5

 

EXECUTION VERSION

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (this “ Amendment ”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the " Company ") and Joseph S. Paresi (hereinafter referred to as the " Executive ") and amends that certain Employment Agreement dated as of August 29, 2006 between Viisage Technology, Inc. and the Executive (the " Agreement "), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1. Section 1 of the Agreement is amended in its entirety as follows:

 

“ 1.         Term. The initial term of this Agreement (the “ Initial Term ”) shall commence as of August 29, 2009, and continue for three years ending on August 29, 2012 (unless this Agreement is terminated earlier in accordance with Section 10 below). Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “ Term .””

2. Section 4(a) of the Agreement is amended in its entirety as follows:

“ (a)       Base Salary. The Executive will receive salary at an initial annual base rate of $335,000 (the “ Base Salary ”), payable in equal increments not less often than monthly in arrears and in any event consistent with the Company’s payroll policy and practices. In addition, the Board shall perform an annual review of Executive’s performance and, in its sole discretion, may make appropriate adjustments in Executive’s base salary (it being understood that any reduction in such base salary shall constitute Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Executive shall receive a lump sum payment in respect of all such retroactive adjustments.”

3. The first sentence of Section 4(b) of the Agreement is amended in its entirety as follows:

“The Executive will be eligible for annual bonuses (the “ Bonus ”) with a target amount of 60% of his Base Salary.”

 

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4. The following sentence is hereby added as the final sentence of Section 4(b) of the Agreement:

“Unless otherwise subject to a deferral election by the Executive which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Executive’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

5. The following sentence is added as the final sentence of Section 4(c) of the Agreement:

“So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Executive, (i) no benefit or payment due to the Executive in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.”

6. Sections 10(c)(ii) and (iii) of the Agreement are amended in their entirety as follows:

“(ii) Without Cause or For Good Reason. If the Executive’s engagement hereunder is terminated by the Company without Cause or by the Executive for Good Reason, the Executive shall receive the following: (A) the payments and benefits described in Section 10(c)(i) above, (B) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase Common Stock and other stock-based awards for the benefit of Executive granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option) and/or all restrictions on such stock-based awards shall lapse, as applicable, (C) an amount equal to the Bonus awarded to the Executive for the most recent completed calendar year (a “ Completed Year ”) for which a Bonus was determined by the Board and, in the event of a termination by the Company without Cause or by the Executive for Good Reason occurring after a Completed Year but prior to the determination by the Board of the Bonus for the Completed Year, a Bonus for the Completed Year in an amount not less than the target Bonus provided by Section 4(b) above, and (D) an amount equal to the Base Salary that would have been payable during the 24 month period following the date of termination, at the rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the termination by the Company without Cause or by the Executive for Good

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Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Executive’s medical, dental and vision benefits (or pay Executive an amount equivalent to such COBRA payments) and shall make payments to continue Executive’s term life insurance (or pay Executive an amount equivalent to the premiums in effect prior to termination). Subject to Section 10(f), any amounts payable under subsections (C) and (D) above shall be paid as follows: 50% within five business days of the termination date and 50% on the next business day following the six month anniversary of the termination date, and each such payment is hereby designated a “separate payment” for purposes of Section 409A of the Code.

(iii)        Death or Disability . If the Executive’s engagement hereunder is terminated because of death or Disability, he (or his legal representatives or heirs) shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause; provided, however , that solely for the purpose of payments due as a result of this Section 10(c)(iii), the amounts payable under subsections 10(c)(ii)(C) and (D) shall be reduced to the extent of any amounts, net of tax, actually paid to the Executive (or his legal representatives or heirs) under any Company-provided life insurance, disability insurance or other similar Company-provided insurance policies or benefits in effect from time to time.”

7. Section 10(c)(iv) is amended to eliminate the following parenthetical phrase: “(except that the pre and post termination Bonus shall be based on the target amount in effect on the date of termination)”.

8. The following new Section 10(c)(v) is added to the Agreement:

“ (v)       Non-Renewal of Term . If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Executive shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause.”

 

9. The following new Section 10(d)(iv) is added to the Agreement:

 

“ (iv)     So as to avoid the application of Section 409A of the Code to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

10. The following new Section 25 is added to the Agreement:

 

“ 25.       Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Executive under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

 

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11. In the event of any inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

 

[Signature Page Follows]

 

 

 

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This agreement has been executed and delivered as of the date first above written.

 

 

 

EXECUTIVE

 

 

 

 

 

 

 

Exhibit 10.6

 

 

 

AMENDMENT TO EMPLOYMENT AGREEMENT

 

This agreement (this “ Amendment ”) is made and entered into as of July 31, 2009 between L-1 Identity Solutions, Inc., a Delaware corporation (the " Company ") and Doni L. Fordyce (hereinafter referred to as the " Executive ") and amends that certain Employment Agreement dated as of August 29, 2006 between Viisage Technology, Inc. and the Executive (the " Agreement "), which Agreement was assumed by the Company on May 16, 2007.

 

WHEREFORE , the parties desire to extend the term of the Agreement and make certain other amendments to the Agreement.

 

NOW, THEREFORE , in consideration of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

 

1. Section 1 of the Agreement is amended in its entirety as follows:

 

“ 1.         Term. The initial term of this Agreement (the “ Initial Term ”) shall commence as of August 29, 2009, and continue for three years ending on August 29, 2012 (unless this Agreement is terminated earlier in accordance with Section 10 below). Upon the expiration of the Initial Term, this Agreement shall be automatically renewed for consecutive one-year terms, unless a party hereto gives the other party written notice of non-renewal, which notice must be received no later than 90 days prior to the expiration of the Term. The Initial Term, together with any extension thereof, is referred to herein as the “ Term .””

2. Section 4(a) of the Agreement is amended in its entirety as follows:

“ (a)       Base Salary. The Executive will receive salary at an initial annual base rate of $275,000 (the “ Base Salary ”), payable in equal increments not less often than monthly in arrears and in any event consistent with the Company’s payroll policy and practices. In addition, the Board shall perform an annual review of Executive’s performance and, in its sole discretion, may make appropriate adjustments in Executive’s base salary (it being understood that any reduction in such base salary shall constitute Good Reason). Such annual review shall be conducted by the Board after the Company’s year-end results have become available (it is contemplated that such review shall occur in or near to March of each year), and any increases in Base Salary determined at such time shall be retroactive to January 1 of the year of determination. In addition, any increases in Base Salary determined by the Board as part of its 2010 annual review ( i.e . after the Company’s 2009 year-end results have become available) shall be retroactive to August 29, 2009. Executive shall receive a lump sum payment in respect of all such retroactive adjustments.”

3. The first sentence of Section 4(b) of the Agreement is amended in its entirety as follows:

 

[Signature Page to Employment Agreement]

 

 

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“The Executive will be eligible for annual bonuses (the “ Bonus ”) with a target amount of 60% of her Base Salary.”

4. The following sentence is added as the final sentence of Section 4(b) of the Agreement:

“Unless otherwise subject to a deferral election by the Executive which is valid pursuant to Section 409A of the Code, any Bonus shall be paid as promptly as practicable following the end of the calendar year and, so as to avoid the application of Section 409A of the Code to the Bonus, in no event shall the Company pay any Bonus later than two and one-half (2.5) months following the end of the year in which the Executive’s right to the Bonus is no longer subject to a substantial risk of forfeiture, as determined for purposes of Section 409A of the Code.”

5. The following sentence is added as the final sentence of Section 4(c) of the Agreement:

“So as to avoid the application of Section 409A of the Code to benefits and reimbursements received by Executive, (i) no benefit or payment due to the Executive in respect of a fringe benefit shall be subject to liquidation or exchange for another benefit or payment, and (ii) the amount reimbursed under a fringe benefit arrangement in one calendar year shall not affect the amount reimbursed under such arrangement in another calendar year, except that the Company shall not be precluded from imposing a limit on the amount of expenses that may be reimbursed under a medical reimbursement arrangement over some or all of the period in which the arrangement remains in effect and (iii) expense reimbursements shall be made by the Company on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.”

6. Sections 10(c)(ii) and (iii) of the Agreement are amended in their entirety as follows:

“ (ii) Without Cause or For Good Reason. If the Executive’s engagement hereunder is terminated by the Company without Cause or by the Executive for Good Reason, the Executive shall receive the following: (A) the payments and benefits described in Section 10(c)(i) above, (B) notwithstanding any provision of any plan or agreement to the contrary, all options to purchase Common Stock and other stock-based awards for the benefit of Executive granted by the Company shall immediately vest and become exercisable in full (and shall remain exercisable for the shorter of 36 months after such termination, the expiration of the maximum original term of such option or, so as to avoid the application of Section 409A of the Code to such option, the tenth anniversary of the grant date of such option) and/or all restrictions on such stock-based awards shall lapse, as applicable, (C) an amount equal to the Bonus awarded to the Executive for the most recent completed calendar year (a “ Completed Year ”) for which a Bonus was determined by the Board and, in the event of a termination by the Company

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without Cause or by the Executive for Good Reason occurring after a Completed Year but prior to the determination by the Board of a Bonus for the Completed Year, a Bonus for the Completed Year in an amount not less than the target Bonus provided by Section 4(b) above, and (D) an amount equal to the Base Salary that would have been payable during the 24 month period following the date of termination, at the rate in effect at the date of termination. In addition, until the earlier of twelve (12) months following the effective date of the termination by the Company without Cause or by the Executive for Good Reason, or when provided by a successor employer, the Company shall make COBRA payments to continue Executive’s medical, dental and vision benefits (or pay Executive an amount equivalent to such COBRA payments) and shall make payments to continue Executive’s term life insurance (or pay Executive an amount equivalent to the premiums in effect prior to termination). Subject to Section 10(f), any amounts payable under subsections (C) and (D) above shall be paid in a lump sum within five business days of the termination date.

(iii)        Death or Disability . If the Executive’s engagement hereunder is terminated because of death or Disability, she (or her legal representatives or heirs) shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause; provided, however , that solely for the purpose of payments due as a result of this Section 10(c)(iii), the amounts payable under subsections 10(c)(ii)(C) and (D) shall be reduced to the extent of any amounts, net of tax, actually paid to the Executive (or her legal representatives or heirs) under any Company-provided life insurance, disability insurance or other similar Company-provided insurance policies or benefits in effect from time to time.”

7. Section 10(c)(iv) is amended to eliminate the following parenthetical phrase: “(except that the pre and post termination Bonus shall be based on the target amount in effect on the date of termination)”.

8. The following new Section 10(c)(v) is added to the Agreement:

“ (v)       Non-Renewal of Term . If the Term is not renewed or extended for at least twelve (12) months on any expiration of the Term, then Executive shall be entitled to all of the payments and benefits described in Section 10(c)(ii) as if the Executive’s engagement hereunder were terminated by the Company without Cause.”

 

9. The following new Section 10(d)(iv) is added to the Agreement:

 

“ (iv)     So as to avoid the application of Section 409A of the Code to any Gross-Up Payment, any Gross-Up Payment shall be made by the Company as required but in no event later than the end of the year in which the underlying tax payment was made.”

 

10. The following new Section 25 is added to the Agreement:

 

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“ 25.       Section 409A of the Code . It is the intention of the parties to this Agreement that no payment or entitlement pursuant to this Agreement give rise to any adverse tax consequences to the Executive under Section 409A of the Code and Department of Treasury regulations and other interpretative guidance thereunder, including that issued after the date hereof, and the Agreement shall be interpreted to that end and consistent with that objective.”

11. In the event of any inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall govern; provided, however, that this Amendment shall govern the terms of employment commencing on August 29, 2009 and prior to such date the terms of the Agreement prior to this Amendment shall govern.

 

[Signature Page Follows]

 

 

 

 

 

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This Agreement has been executed and delivered as of the date first above written.

 

 

EXECUTIVE