Exhibit 10.1


 


FORM OF
AMENDMENT TO


EXECUTIVE
EMPLOYMENT AGREEMENT


 


 


                THIS AMENDMENT NO. 1 (hereinafter the “Amendment”) TO THE EMPLOYMENT
AGREEMENT between [Executive Name — See
Appendix 1] (hereinafter “Employee”) and
NEON Systems, Inc. (hereinafter “Employer”)
dated January 1, 2004 (the “Original
Agreement”), is made and entered into effective as of August 11, 2005, by and
between Employee and Employer.


 


W I  T  N  E
S  SE  T  H:


 


1.             Section
7. Termination is hereby amended, replaced and superseded in its entirety
by the following new Section


 


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


 


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


 


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


 


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


 


                                                                d.             the occurrence of a Change in
Control (as defined herein) and an Involuntary Termination of Employee.  For purposes hereof, an Involuntary
Termination shall mean (i) without the Employee’s express written consent, a
significant reduction of the Employee’s duties, position or responsibilities
relative to the Employee’s duties, position or responsibilities in effect
immediately prior to such reduction, or the removal of the Employee from such
position, duties and responsibilities, unless the Employee is provided with
comparable duties, position  and
responsibilities; (ii) without the Employee’s express written consent, a
substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Employee
immediately prior to such reduction; (iii) a reduction by the Company of the
Employee’s base salary as in effect immediately prior to such reduction; (iv) a
material reduction by the Company in the kind or level of employee benefits to
which the Employee is entitled immediately prior to such reduction with the
result that the Employee’s overall benefits package is significantly reduced;
(v) without the Employee’s express written consent, the relocation of the
Employee to a facility or a location more than fifty (50) miles from his
current location; (vi) any purported termination of the Employee by the Company
which is not effected for Cause or for which the grounds relied upon are not
valid; or (vii) the failure of the Company to obtain the assumption of this
Agreement by any acquiring or successor entities; or


 


                                e.             thirty (30) days prior written
notice from Employee to Employer; provided, however, that Employer shall have
the right to waive such notice period by paying Employee one month severance in
lieu of such notice, such right to be exercised by Employer in its sole
discretion; or


 


                                f.              at Employer’s option, immediately
upon the existence of “cause.”  For
purposes of this Agreement, the term “cause” shall be defined as:


 


(1)                                  willful and continued failure of Employee
to substantially perform the duties required of him in this Agreement in a
manner satisfactory to Employer, in the sole discretion of a majority of the
members of the Board of Directors, exercised in good faith;  provided, however, that the Term of Employment
shall not be terminated pursuant to this subparagraph (1) unless Employer first
gives Employee a written notice (“Notice of 




 





















 




Deficiency”).  The Notice of Deficiency shall specify the
deficiencies 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 the
deficiencies contained in the Notice of Deficiency.  If Employee does not cure the deficiencies to
the reasonable satisfaction of Employer, in Employer’s sole reasonable discretion,
within such thirty (30) day period, the Employer shall have the right to
immediately terminate the Term of Employment and this Agreement.  The provisions of this subparagraph (1) may
be invoked by Employer any number of times and cure of deficiencies contained
in any Notice of Deficiency shall not be construed as a waiver of this
subparagraph (1) nor prevent the Employer from issuing any subsequent Notices
of Deficiency;


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


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


(4)                                  the conviction (or plea of guilty or nolo
contendere) of Employee of any felony or other crime involving dishonesty or
moral turpitude;


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


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


 


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


 


                                                Upon termination of this Agreement for
any reason, Employee or Employee’s estate, as appropriate, shall be entitled to
receive (in addition to any fringe benefits payable upon death in the case of
Employee’s death) the compensation provided for in Section 3 hereof (prorated
on a daily basis) up to and including the effective date of termination.  In addition, Employee shall be entitled to
the severance compensation set forth below in the event Employee’s employment
is terminated pursuant to the terms of subsections (c) and (d) of this Section
7.  In such events, Employer shall pay to
Employee as severance compensation a lump sum amount equal to the prior [see Appendix 1] months’ total
compensation paid to Employee (provided, however, that in the event that no
Incentive Compensation was paid to Employee within the twelve (12) month period
prior to such termination, the full portion of Employee’s target Incentive
Compensation for the then-current fiscal year shall be included in the
computation of the severance compensation).”


 


2.             All
other terms and conditions of the Agreement shall remain in full force and
effect and are hereby incorporated by this reference.


 


                IN WITNESS WHEREOF, the undersigned have hereunto set their
hands on the date first written above.


 


	
   

  	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Executive Name]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EMPLOYER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NEON SYSTEMS, INC.

  
	
   

  	
   

  	
  a Delaware Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Brian D. Helman, Chief Financial Officer

  



 


 





















 


APPENDIX
1


 


 


	
  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