**Exhibit 10.1**

 

**FORM OFAMENDMENT TO**

**EXECUTIVEEMPLOYMENT AGREEMENT**

 

 

                **THIS AMENDMENT NO. 1 (hereinafter the “Amendment”) TO THE EMPLOYMENTAGREEMENT**between [***Executive Name — SeeAppendix 1*]** (hereinafter “**Employee”)** andNEON Systems, Inc. (hereinafter “**Employer**”)dated January 1, 2004****(the “OriginalAgreement”), is made and entered into effective as of August 11, 2005, by andbetween Employee and Employer.

 

**W****ITNESSETH:**

 

**1.             Section7. Termination is hereby amended, replaced and superseded in its entiretyby the following new Section**

 

“7.           **Termination**.  Notwithstanding any other provisions of thisAgreement, the Term of Employment shall terminate upon:

 

                                                                a.             six (6) months following the deathof Employee; or

 

                                                                b.             six (6) months following Employee’s“disability” (For purposes of this Agreement, the term “disability” shall meanthe inability of Employee, arising out of any medically determinable physicalor mental impairment, to perform the services required of him hereunder for aperiod of sixty (60) consecutive days during which sixty (60) day periodEmployee’s compensation hereunder shall continue); or

 

                                                                c.             thirty (30) days prior writtennotice from Employer to Employee, without cause; or

 

                                                                d.             the occurrence of a Change inControl (as defined herein) and an Involuntary Termination of Employee.  For purposes hereof, an InvoluntaryTermination shall mean (i) without the Employee’s express written consent, asignificant reduction of the Employee’s duties, position or responsibilitiesrelative to the Employee’s duties, position or responsibilities in effectimmediately prior to such reduction, or the removal of the Employee from suchposition, duties and responsibilities, unless the Employee is provided withcomparable duties, position  andresponsibilities; (ii) without the Employee’s express written consent, asubstantial reduction, without good business reasons, of the facilities andperquisites (including office space and location) available to the Employeeimmediately prior to such reduction; (iii) a reduction by the Company of theEmployee’s base salary as in effect immediately prior to such reduction; (iv) amaterial reduction by the Company in the kind or level of employee benefits towhich the Employee is entitled immediately prior to such reduction with theresult that the Employee’s overall benefits package is significantly reduced;(v) without the Employee’s express written consent, the relocation of theEmployee to a facility or a location more than fifty (50) miles from hiscurrent location; (vi) any purported termination of the Employee by the Companywhich is not effected for Cause or for which the grounds relied upon are notvalid; or (vii) the failure of the Company to obtain the assumption of thisAgreement by any acquiring or successor entities; or

 

                                e.             thirty (30) days prior writtennotice from Employee to Employer; provided, however, that Employer shall havethe right to waive such notice period by paying Employee one month severance inlieu of such notice, such right to be exercised by Employer in its solediscretion; or

 

                                f.              at Employer’s option, immediatelyupon the existence of “cause.”  Forpurposes of this Agreement, the term “cause” shall be defined as:

 

(1)                                  willful and continued failure of Employeeto substantially perform the duties required of him in this Agreement in amanner satisfactory to Employer, in the sole discretion of a majority of themembers of the Board of Directors, exercised in good faith;  provided, however, that the Term of Employmentshall not be terminated pursuant to this subparagraph (1) unless Employer firstgives Employee a written notice (**“Notice of**

 

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**Deficiency”**).  The Notice of Deficiency shall specify thedeficiencies in Employee’s performance of his duties.  Employee shall have a period of thirty (30)days, commencing on receipt of the Notice of Deficiency, in which to cure thedeficiencies contained in the Notice of Deficiency.  If Employee does not cure the deficiencies tothe reasonable satisfaction of Employer, in Employer’s sole reasonable discretion,within such thirty (30) day period, the Employer shall have the right toimmediately terminate the Term of Employment and this Agreement.  The provisions of this subparagraph (1) maybe invoked by Employer any number of times and cure of deficiencies containedin any Notice of Deficiency shall not be construed as a waiver of thissubparagraph (1) nor prevent the Employer from issuing any subsequent Noticesof Deficiency;

(2)                                  the willful engaging by Employee inmisconduct which is materially injurious to Employer or its affiliates,monetarily or otherwise;

(3)                                  any dishonesty by Employee in hisdealings with the Employer, the commission of fraud by Employee;

(4)                                  the conviction (or plea of guilty or nolocontendere) of Employee of any felony or other crime involving dishonesty ormoral turpitude;

(5)                                  violation of any covenant or restrictioncontained in Section 11 or Section 12 hereof; or

(6)                                  unlawful use of narcotics or othercontrolled substances, or use of alcohol or other drugs in a manner the Employerreasonably determines to be adverse to the best interests of the Employer.

 

For all purposes of this Agreement, no act, or failureto act, on Employee’s part shall be considered “willful” unless done, oromitted to be done, by him not in good faith and without reasonable belief thathis action or omission was in, or not opposed to, the best interest of Employeror its affiliates.

 

                                                Upon termination of this Agreement forany reason, Employee or Employee’s estate, as appropriate, shall be entitled toreceive (in addition to any fringe benefits payable upon death in the case ofEmployee’s death) the compensation provided for in Section 3 hereof (proratedon a daily basis) up to and including the effective date of termination.  In addition, Employee shall be entitled tothe severance compensation set forth below in the event Employee’s employmentis terminated pursuant to the terms of subsections (c) and (d) of this Section7.  In such events, Employer shall pay toEmployee as severance compensation a lump sum amount equal to the prior [***see Appendix 1***] months’ totalcompensation paid to Employee (provided, however, that in the event that noIncentive Compensation was paid to Employee within the twelve (12) month periodprior to such termination, the full portion of Employee’s target IncentiveCompensation for the then-current fiscal year shall be included in thecomputation of the severance compensation).”

 

**2.             Allother terms and conditions of the Agreement shall remain in full force andeffect and are hereby incorporated by this reference.**

 

                **IN WITNESS WHEREOF**, the undersigned have hereunto set theirhands on the date first written above.

 
|   |   | EMPLOYEE:                                |
|--------|--------|------------------------------------------|
|   |   |                                     |
|   |   |                                     |
|   |   | [Executive Name]                         |
|   |   |                                     |
|   |   | EMPLOYER:                                |
|   |   |                                     |
|   |   | NEON SYSTEMS, INC.                       |
|   |   | a Delaware Corporation                   |
|   |   |                                     |
|   |   | By:                                      |   |
|   |   | Brian D. Helman, Chief Financial Officer |

 

 

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** **

**APPENDIX1**

 

 
| **Executive Name &  Title**                  | ** ** | **Months  Severance** |
|--------------------------------------------------|------------|-----------------------|
|                                             |       |                  |
| Mark  J. Cresswell, President and CEO            |       | Twelve                |
| Brian  D. Helman, CFO                            |       | Twelve                |
| Shelby  R. Fike, SVP and General Counsel         |       | Twelve                |
| Jerry  Paladino, SVP of Worldwide Sales          |       | Six                   |
| Chris  Garner, SVP of Research & Development |       | Six                   |
| Robert  Evelyn, SVP of Strategy and Solutions    |       | Six                   |