EXHIBIT 10.3
FIRST AMENDMENT TO
EXECUTIVE EMPLOYMENT AGREEMENT
This First Amendment to the Executive Employment Agreement (the "FIRST
AMENDMENT") originally entered into as of the 26th day of March, 2004 is made
and entered into as of June 14, 2004 (the "EFFECTIVE DATE"), by and between GX
Technology Corporation, a Texas corporation (the "COMPANY"), located at 5847 San
Felipe, Suite 3800, Houston, Texas 77057 and Michael K. Lambert (the
"EXECUTIVE"), residing at 5034 Yarwell Dr., Houston, TX 77098.
WITNESSETH:
WHEREAS, the Company and the Executive are parties to that certain
Employment Agreement dated as of March 26, 2004 (the "ORIGINAL AGREEMENT"); and
WHEREAS, the Company and the Executive desire to amend the Original
Agreement in accordance with the terms contained in this First Amendment.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Amendment of Section 8. As of the Effective Date specified above, a
new Section 8.11 is added to the end of Section 8 to read as follows:
"8.11 Notwithstanding any of the provisions of this Agreement, the
amount of all Termination Payments to be made pursuant to Section
8.5 and Section 8.6 after a Change of Control as defined in Section
280G of the Internal Revenue Code of 1986, as amended and then in
effect at the time of such payment (the "CODE"), shall be
conditioned and restricted as follows. Executive shall not be
entitled to any Termination Payments under this Agreement after a
Change of Control that would otherwise be payable without regard to
this Section 8.11 unless, immediately before the Change of Control,
no stock of the Company is readily tradeable on an established
securities market or otherwise, the Termination Payments are
approved by more than 75% of the voting power of all outstanding
stock of the Company entitled to vote immediately before the Change
of Control and there is adequate disclosure to all persons entitled
to vote of all material facts concerning all material payments which
(but for this provision) would be parachute payments as defined in
Section 280G of the Code. The requirements for shareholder approval
of the Termination Payments shall be determined in a manner that is
consistent with the provisions of Treas. Regs. Section 1.280G-1, Q&A
7."
2. Amendment of Section 3. As of the Effective Date specified above, a
new paragraph is added to the end of Section 8 to read as follows:
"Notwithstanding the foregoing, the amount of the Supplemental
Compensation for the current fiscal year of the Company that
includes the Effective Date shall be $220,000 and shall be made at
such time after the closing ("Closing") of the transactions
contemplated by the Stock Purchase Agreement dated as of May 10,
2004 between the Company, the holders of all of the outstanding
shares of capital stock of the Company, as Sellers and Input/Output,
Inc. (the "Purchaser") when the purchaser determines in good faith
that such payment will not materially adversely affect the operating
cash needs of the Company after the Closing, but in no event later
than September 30, 2004. Executive shall not be entitled to any
Supplemental Compensation under this Agreement for such fiscal year
that would otherwise be payable without regard to this paragraph
unless, immediately before the Change of Control, no stock of the
Company is readily tradeable on an established securities market or
otherwise, the Supplemental Compensation bonus amounts are approved
by more than 75% of the voting power of all outstanding stock of the
Company entitled to vote immediately before the Closing and there is
adequate disclosure to all persons entitled to vote of all material
facts concerning all material payments which (but for this
provision) would be parachute payments as defined in Section 280G of
the Code. The requirements for shareholder approval of the
Supplemental Compensation for the fiscal year that includes the date
of the Closing shall be determined in a manner that is consistent
with the provisions of Treas. Regs. Section 1.280G-1, Q&A 7."
3. Ratification. The Company and Executive hereby agree that except as
expressly modified or amended herein, the terms, conditions and covenants of the
Original Agreement are hereby ratified and confirmed and shall remain in full
force and effect. To the extent there is any conflict between the terms and
provisions of the Original Agreement and this First Amendment, the Company and
Executive agree that this First Amendment shall control.
[SIGNATURE PAGE FOLLOWS]
This document may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument. The execution of a facsimile copy of this Agreement shall be
deemed an original.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the day and year first above written.
COMPANY:
GX TECHNOLOGY CORPORATION
By: /s/Signature
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Name:
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Title:
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EXECUTIVE:
/s/Michael K. Lambert
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MICHAEL K. LAMBERT, in his individual capacity