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EXHIBIT 10.12
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 Mark Gazit ("Executive").
WITNESSETH
WHEREAS, the Company and Executive have entered into an Employment
Agreement dated as of May 30, 2000 (the "Employment Agreement"); and
WHEREAS, the Company and Employee wish to enter into this Amendment
to provide, among other things, for the modification of Executive's
compensation 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 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).
2. Section 3(b) of the Employment Agreement shall be amended and restated in
its entirety as follows:
"(a) PERFORMANCE INCENTIVE PLAN. During the Employment Period,
Executive shall be eligible to participate in the Company's 1999 Performance
Incentive Plan. 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."
3. 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
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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):
<TABLE>
<CAPTION>
Date First Exercisable Number of Shares Becoming Vested on Such Date
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<S> <C>
January 1, 2001 18,055
January 1, 2002 43,333
January 1, 2003 43,333
August 1, 2003 25,279
</TABLE>
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
the 18 month anniversary of the Commencement Date, only the exercisable
portion of the Additional Options, if any, shall remain exercisable and any
unvested portion of 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."
4. Capitalized terms used in this Amendment No. 1 and not otherwise defined
shall have the meanings ascribed to such terms in the Employment Agreement.
5. Except as otherwise provided herein, the Employment Agreement shall remain
in full force and effect.
6. 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.
7. 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.
8. 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.
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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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