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EXHIBIT 10.1
FIRST AMENDMENT
TO
EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement (the "Amendment"), dated
as of April 1, 2000, is entered into by and between American Homestar
Corporation, a Texas corporation ("Employer"), and Xxxxxxxx X. Xxxxxx, Xx.
("Employee"). Capitalized terms used herein but not defined herein shall have
the respective meanings ascribed to them in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Employer and Employee are parties to that certain Employment
Agreement, dated as of November 15, 1996 (the "Agreement"); and
WHEREAS, Employer and Employee desire to amend the Agreement to the
extent provided herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
A. AMENDMENT TO AGREEMENT. The Agreement is hereby amended as follows:
(1) Section 3 of the Agreement is hereby amended to read in
its entirety as follows:
3. Term. The employment of Employee under this
Agreement shall commence on October 1, 1996, and shall
continue, unless earlier terminated pursuant to Section 6 or 7
below, until June 30, 2003; provided, however, that this
Agreement shall automatically extend for a one year period on
each June 30, commencing on June 30, 2003, unless either
Employer or Employee provides the other written notice at
least 180 days prior to the end of the then existing terms of
its intent to terminate this Agreement at the end of the then
applicable term. The initial term of this Agreement and any
renewal terms as provided above are collectively referred to
herein as the "Term".
(2) Effective as of the date of this Amendment, the yearly
salary set forth in Section 4 of the Agreement is hereby changed from $235,000
to $360,000.
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(3) The current Sections 7-19 of the Agreement are renumbered
as Sections 8-20, and any references in the Agreement to such Sections are
hereby changed accordingly.
(4) A new Section 7 is hereby added to the Agreement, which
Section shall read in its entirety as follows:
7. Change In Control.
(a) Termination Payment. Notwithstanding anything to the
contrary contained in Section 6 above, and in lieu of any
payments required by Section 6 above, if Employee's employment
with Employer is terminated by Employee or Employer, for any
reason, within the twelve month period following a Change in
Control (as defined in subsection (b) below), Employee shall
be entitled to receive:
(i) any unpaid salary and any accrued but unpaid
bonuses through the date of termination
following the occurrence of the Change in
Control (the "Triggering Date"); and
(ii) in lieu of any further salary or bonus
payments to Employee for periods subsequent
to the Triggering Date, Employer shall pay
as severance payment to Employee, not later
than the fifteenth (15th) day following the
Triggering Date, a lump sum severance
payment equal to the sum of: (i) Employee's
then current yearly salary multiplied by
three (3), plus (ii) an amount equal to the
average bonuses earned by Employee for the
last three completed fiscal years of
Employer multiplied by three (3).
Notwithstanding the above, in no event shall the aggregate
payments under this Section 7 exceed an amount equal to (i)
the product of three (3) times the base amount (as such term
is defined in Section 280(g) of the Internal Revenue Code of
1986, as amended), minus (ii) $1.00.
(b) Change in Control. A "Change in Control" will be deemed to
have occurred for purposes hereof (i) upon the acquisition of
beneficial ownership, directly or indirectly, by any person
(as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of securities of Employer representing 30% or more of
the combined voting power of Employer's then outstanding
securities; or (ii) upon the consummation of a sale of all or
substantially all of the assets of the Company and its
subsidiaries, taken as a whole, which are disposed of pursuant
to (1) a partial or complete liquidation or (2) a sale of
assets; provided, however, that a Change in Control will not
be deemed to have occurred for purposes hereof with respect to
any person meeting the requirements of clauses (i) and (ii) of
Rule 13d-1(b)(1) promulgated under the Exchange Act.
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B. MISCELLANEOUS.
(1) Except as specifically provided herein, the Agreement
shall remain in full force and effect. The Agreement and this Amendment contains
the entire agreement between Employee and Employer regarding the employment of
Employee by Employer, and supersedes any and all other agreements (oral or
written) regarding such subject matter.
(2) This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
AMERICAN HOMESTAR CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Its: Chairman
/s/ Xxxxxxxx X. Xxxxxx, Xx.
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Xxxxxxxx X. Xxxxxx, Xx.
