Amendment No. 2 to the Amended and Restated Employment Agreement
Between
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And
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This Amendment No. 2 to the Amended and Restated Employment Agreement
effective as of this 18th day of May, 2005 (this "Agreement"), between ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, residing at ▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Executive"), and ▇▇▇▇▇▇▇.▇▇▇, Inc., an Utah corporation with an office
currently at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company").
Whereas, the Executive is currently employed by the Company pursuant to terms
and provisions of the Amended and Restated Employment Agreement (together, the
"Current Agreement");
Whereas, each of the Company and the Executive agree to amend and supersede
certain terms and provisions of the Current Agreement by entering into this
agreement to provide for the issuance of the shares by the Company upon the
terms and provisions set forth herein.
1. Shares. Section 2.3 of the Current Agreement is hereby deleted in
its entirety and replaced with the following:
"The Company hereby grants the Executive 2,650,000 shares of common stock
of the Company. The shares shall vest pro ratably every 3 months over a
3-year period commencing on April 4, 2005. Notwithstanding anything contained
herein to the contrary, if the Company has a Change of Control (as defined
below), all of said shares shall automatically be issued simultaneous upon
the effective date of the Change of Control.
"Change of Control" shall mean the occurrence of any of the following
events:
(i) The acquisition, other than from the Company (which term for
purposes of this Subsection (i) includes any successor corporation),
or any subsidiary thereof by any person or group (as such terms are
used for the purposes of Sections 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act")) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
▇▇▇▇ ▇▇▇) of securities with voting power equal to fifty percent
(50%) or more of the combined voting power of the Company's then
outstanding voting securities;
(ii) Approval by the Company's stockholders of (a) a merger or
consolidation of the Company with or into another corporation if the
stockholders of the Company, immediately before such merger or
consolidation do not, immediately after such merger or
consolidation, own, directly or indirectly, more than fifty percent
(50%) of the combined voting power of the then outstanding voting
securities of the corporation resulting from such merger or
consolidation in substantially the same proportion as their
ownership of the combined voting power of the voting securities of
the Company outstanding immediately before such merger or
consolidation or (b) dissolution of the Company or an agreement for
the sale or other disposition of all or substantially all of the
assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities
is acquired by (i) a trustee or other fiduciary holding securities
under one or more employee benefit plans maintained by the Company
or any of its subsidiaries or (ii) any corporation which,
immediately prior to such acquisition, is owned directly or
indirectly by the stockholders of the Company in the same proportion
as their ownership of stock in the Company immediately prior to such
acquisition.
For purposes of the foregoing definition, the Company's stockholders are deemed
to be the indirect owners of any assets, including stock interests, held by the
Company or any subsidiary hereof.
2. Reference. On and after the date hereof, each reference in the Current
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import, and each reference to the Current Agreement in any other agreement,
document or other instrument, shall mean, and be a reference to the Current
Agreement, as amended by this Amendment.
3. Counterparts. This Amendment may be executed in one or more
counterparts and by facsimile, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
4. Captions. The captions used in this Amendment are intended for
convenience of reference only, shall not constitute any part of this Amendment
and shall not modify or affect in any manner the meaning or interpretation of
any of the provisions of this Amendment.
5. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of the respective heirs, executors, administrators, representatives
and the permitted successors and assigns of the parties hereto.
6. Governing Law. This Amendment and the rights and obligations of
the parties under this Amendment shall be governed by and construed in
accordance with the laws of the State of New Jersey, without regard to conflict
of laws rules applied in such state.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Amended and Restated Employment Agreement as of the date first written above.
▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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