Exhibit 10.21
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 Jeremy E.
Helfand. 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 November 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
