EXHIBIT 10.24
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 ("Amendment No. 1"), is made as of this 1st
day of June, 2000 by and between deltathree.com, Inc. a Delaware
corporation (the "Company") and Shimmy Zimels ("Executive").
WITNESSETH
WHEREAS, the Company and Executive have entered into an Employment
Agreement dated as of April 1, 1999 (the "Employment Agreement"); and
WHEREAS, the Company and Employee wish to enter into this Amendment
to provide, among other things, that the Executive shall serve as the
Company's Chief Operating Officer from and after the date of this Amendment
No. 1;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants undertaken herein, and with the intent to be legally bound
hereby, the Company and Executive hereby agree to amend the Employment
Agreement as follows:
1. Section 2 of the Employment Agreement shall be amended and
restated in its entirety as follows:
"(a) In general. Executive shall be employed as the Chief Operating
Officer and shall perform such duties and services, consistent with such
position and his current duties and services for the Company, and as may be
assigned to him from time to time by the Chief Executive Officer ("CEO") of
the Company. The duties of the Executive shall include serving as an
officer or director or otherwise performing services for any "Affiliate" of
the Company as requested by the Company. An "Affiliate" of the Company
means any entity that controls, is controlled by or is under common control
with the Company. Executive shall report to the CEO."
2. Section 3(a) of the Employment Agreement shall be amended by
substituting "US $200,000" for "US$170,000" in the first sentence of such
Section 3(a).
3. Section 3(b) of the Employment Agreement shall be amended and
restated in its entirety as follows:
"(b) Performance Incentive Plan. During the Employment Period,
Executive shall be eligible to participate in the Company's 1999
Performance Incentive Plan. Beginning as of the date of this Amendment No.
1, the maximum bonus award under the 1999 Performance Incentive Plan shall
be 35% of Executive's Base Salary. The discretionary portion of the bonus
shall be determined by the Compensation Committee. If the Company shall
amend or terminate the 1999 Performance Incentive Plan in a manner that
would reduce the opportunity of Executive to earn an incentive bonus as
provided herein, the Company shall provide a substitute arrangement so that
Executive's total bonus opportunity as provided herein will not be
materially reduced."
4. A new Section 3(d) shall be inserted and shall read as
follows:
"3(d) Additional Options. The Company shall grant to the Executive
additional options to purchase 130,000 shares of Common Stock (the
"Additional Options") pursuant to the Company's 1999 Stock Incentive Plan
at an exercise price per share equal to US$6.7812, the fair market value of
the Common Stock on the date of grant. The Additional Options grant date
shall be the date the Additional Options grant is approved by the Board of
Directors or the Compensation Committee of the Board of Directors. The
Additional Options shall become exercisable as set forth below, provided
that Executive is employed by the Company on such date, and once
exercisable shall, except as otherwise provided below, remain exercisable
until the expiration of seven years from the date of grant. However, the
Additional Options shall be immediately terminated upon a termination of
Executive's employment by the Company for Cause (as hereinafter defined):
Date First Exercisable Percentage Exercisable
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December 31, 2000 33-1/3%
December 31, 2001 66-2/3%
December 31, 2002 100%
The Additional Options shall become immediately exercisable in full
in the event that Executive's employment with the Company is terminated:
(i) by the Company other than for Cause, (ii) by Executive for Good Reason
or (iii) by reason of the death or Disability of the Executive; PROVIDED,
HOWEVER, that if Executive's employment is terminated for any reason prior
to September 30, 2000, the Additional Options shall not be exercisable. The
Additional Options shall expire on the seven-year anniversary of the date
of grant.
Additionally, the Additional Options shall become immediately
exercisable in full upon a Change in Control. The exercisable portion of
the Additional Options shall, following any termination of Executive's
employment (other than for Cause), remain exercisable for the lesser of two
years and the remaining term of the Additional Options."
5. Capitalized terms used in this Amendment No. 1 and not
otherwise defined shall have the meanings ascribed to such terms in
the Employment Agreement.
6. Except as otherwise provided herein, the Employment Agreement
shall remain in full force and effect.
7. This Amendment No. 1, together with the Employment Agreement as
so modified, shall be subject to amendment, modification or waiver
only by a mutually signed written instrument which by its terms
evidences an intention to modify or amend the provisions hereof.
8. Any questions or other matters arising under this Amendment No. 1,
whether of validity, interpretation, performance or otherwise, will
therefore be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be wholly performed
in New York, without reference to principles of conflicts or choice of law
under which the law of any other jurisdiction would apply.
9. This Amendment No. 1 may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment No. 1 has been executed by
Executive and then by the Company in New York, New York, on the dates shown
below, but effective as of the date and year first above written.
Date:
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Executive
deltathree.com, Inc.
Date: BY:
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Title:
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