AMENDMENT NO. 2 TO AGREEMENT
EXHIBIT
10.4
This Amendment No. 2 (the “Amendment”)
to the Agreement, by and between Walco International, Inc., a Delaware
corporation (the “Company”) and Xxxxx X. Xxxxxxxxxxx (the “Executive”) is
entered into as of the 31st day of December, 2008 (“Effective
Date”).
WHEREAS, the Company and Executive
previously entered into that certain Agreement dated March 10, 2000 (the
“Agreement”), as amended by that certain Non-Competition Addendum dated as of
September 30, 2005, wherein Employee agreed to certain confidentiality,
non-solicitation, and non-compete obligations contained therein;
and
WHEREAS,
the Company and the Executive desire to amend certain terms of the Agreement as
set forth herein;
NOW THEREFORE, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Capitalized
Terms. All capitalized terms used, but not defined herein,
shall have the same meaning as prescribed in the Employment
Agreement.
2. Amendment to Severance
Benefits Sections of the Agreement. The last paragraph of the
Severance Benefits section of the Agreement is hereby deleted and replaced in
its entirety by the following:
The
following shall constitute Good Reason for termination by the Executive: (i) a
material diminution in the nature or scope of the Executive's powers, duties or
responsibilities without the Executive's prior consent; provided, however, that
any diminution of the business of the Company or any of its Affiliates,
including without limitation the sale or transfer of any or all of the assets of
the Company or any of its Affiliates, shall not constitute "Good Reason", or
(ii) any other material breach of this Agreement. If the Executive
believes Good Reason exists for terminating this Agreement, she shall give the
Company written notice of the acts or omissions constituting Good Reason within
90 days of the initial existence of such acts or omissions, and no termination
of this Agreement shall be effective unless and until the Company fails to cure
such acts or omissions within 30 days after receiving the written notice and the
Executive separates from service within two years following the initial
existence of the acts or omissions giving rise to Good Reason.
3. Entire
Agreement. This Amendment constitutes the sole and entire
agreement of the parties with respect to the amendment of the Agreement;
supersedes all prior verbal and written understandings and agreements between
the parties relating to its subject matter; and may not be modified except in a
writing signed by both parties.
IN WITNESS WHEREOF, the undersigned
have executed this Amendment as of the Effective Date.
| EXECUTIVE | WALCO INTERNATIONAL, INC. | ||
| /s/ Xxxxx X. Xxxxxxxxxxx | By: |
/s Xxxxx X.
Xxxxxxx
|
|
| Xxxxx X. Xxxxxxxxxxx | Name: | Xxxxx X. Xxxxxxx | |
| Title: | President and C.E.O. | ||
