Exhibit 10.23
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
This amendment dated and effective
January 1, 2009 (this “Amendment”), amends that
certain Employment Agreement dated as of August 15, 2007 (the
“Original Agreement”) by and between United
Online, Inc. (the “Company”) and Paul E.
Jordan. Capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in the Original
Agreement.
RECITALS
WHEREAS, Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
places certain restrictions, among other things, as to the timing
of distributions from nonqualified deferred compensation plans and
arrangements; and
WHEREAS, the parties desire to amend
the Original Agreement to comply with Section 409A of the
Code.
NOW, THEREFORE, in consideration of
the mutual promises set forth herein, the parties hereto hereby
agree as follows:
1.
Two new sentences are hereby added
to the end of Section 2(c) of the Original Agreement, as
follows:
“In no event shall any expense
be reimbursed later than the end of the calendar year following the
calendar year in which that expense was incurred, and the amounts
reimbursed in any one calendar year shall not affect the amounts
reimbursable in any other calendar year. Your right to
receive such reimbursements may not be exchanged or liquidated for
any other benefit.”
2.
A new sentence is hereby added to
the end of Section 3 of the Original Agreement, as
follows:
“Your annual bonus award shall
in no event be paid later than the 15th day of the third month
following the end of your taxable year or, if later, the end of the
Company’s taxable year in which such bonus award is
earned.”
3.
A new sentence is hereby added to
the end of each of Section 4(b) and 4(c) of the
Original Agreement, as follows:
“Except as otherwise expressly
provided in the agreement evidencing a particular restricted
stock unit award, the shares of common stock underlying the
restricted stock units that vest on such an accelerated basis will
be issued to you on the first business day, within the sixty
(60)-day period following the date of your cessation from service
as a result of your termination “without cause” (as
defined below) or your resignation for “good reason”
(as defined below), on which the executed Release required of you
pursuant to Section 7(b) is effective and enforceable in
accordance with its terms following any applicable revocation
period, or as soon thereafter as administratively practicable, but
in no event later than the last business day of that sixty (60)-day
period on which such Release is effective and
enforceable.”
4.
The first paragraph of
Section 7(b) of the Original Agreement is hereby amended
in its entirety to read as follows:
“If (i) your employment
is terminated by the Company “without cause” (as
defined below) prior to August 15, 2010, (ii) you execute
and deliver to the Company, within twenty-one (21) days (or
forty-five (45) days to the extent such longer period is required
under applicable law) after the effective date of your termination
of employment, a comprehensive agreement releasing the Company and
its officers, directors, employees, stockholders, subsidiaries,
affiliates, representatives and other parties and containing such
other and additional terms as the Company deems satisfactory (the
“ Release ”) and (iii) such Release
becomes effective and enforceable after the expiration of any
applicable revocation period under federal or state law, then the
Company will pay you a separation payment (the “
Separation Payment ”) equal to the sum of
(i) twelve (12) months of your then current monthly base
salary, (ii) your Annual Bonus (as defined below), and
(iii) a prorated portion of your Annual Bonus (as defined
below) based upon the time elapsed between December 31 of the
preceding year and your date of termination. In addition,
notwithstanding the fourth sentence of Section 3 above but
contingent upon your delivery of an effective and enforceable
Release in accordance with the foregoing provisions of this
Section 7(b), if the date of such termination occurs following
the end of a fiscal year and prior to the date that you would have
otherwise been entitled to be paid your annual bonus for that
fiscal year, the Company will pay you an amount equal to the annual
bonus that you would have received had you remained employed by,
and in good standing with, the Company through the date the annual
bonus for that fiscal year is paid in the following fiscal year,
with that amount to be paid at the same time and manner that such
payment would have paid to you had you remained employed through
such date, but in no event later than the last day of the fiscal
year immediately following fiscal year for which such bonus is
earned.
Payment of this Separation Payment
and the additional bonus amount (if any) under this
Section 7(b) and the accelerated vesting of your equity
awards under Section 4, will each be contingent upon the
satisfaction of the following requirements: (i) you execute
and deliver to the Company on a timely basis your required Release
in accordance with this Section 7(b), (ii) such Release
becomes effective and enforceable after the expiration of any
applicable revocation period under federal or state law and
(iii) you continue to comply with the Proprietary Information
and Inventions Agreement and the restricted covenants set forth in
Section 9 below.
The Separation Payment under this
Section 7(b) will be payable in a series of twelve (12)
successive equal monthly installments, beginning on the first
regular payday for the Company’s salaried employees, within
the sixty (60)-day period following the date of your
“separation from service” (as such term is defined in
Treasury Regulations issued under Code Section 409A) as a
result of your termination “without cause” (as defined
below), on which your
