EXHIBIT 10.23(A)
XXXXXX A.S.L., LTD.
January 16, 2003
Mr. Xxxxxxx Xxxx
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Dear Rich:
This letter, when countersigned by you, will confirm our agreement
(subject to Bankruptcy Court approval) to amend the terms of the Company's
employment agreement with you dated October 10, 2001 (the "Agreement"), so as to
include a new paragraph, 4(e), which shall provide in its entirety as follows
(all terms used but not defined herein shall have the respective meanings set
forth in the Agreement):
4(e) Termination After a Change in Control.
(i) In the event Executive's employment is terminated by the Company
without Cause, or if Executive's duties or responsibilities are significantly
reduced or made inconsistent with Executive's title or position and as a result
Executive elects to terminate his employment, within 12 months following a
Change of Control, Executive shall be entitled to the same compensation and
benefits described in Section 4(a) hereof with respect to any termination by the
Company without Cause, PLUS an amount equal to Executive's annual base salary on
the effective date of termination (the "Supplemental Payment"). The Supplemental
Payment shall be paid to Executive in one lump sum within twenty (20) days after
the effective date of such termination, it being the intent of the parties that
the Supplemental Payment shall not be reduced by any compensation thereafter
actually received by Executive as a result of Executive's employment or
retention by another employer in any capacity.
(ii) A "Change in Control" shall be deemed to have occurred if (i) any
"Person" (as such term is used in Section 13(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as
determined pursuant to Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more than fifty percent
(50%) of the combined voting power of the Company's then outstanding securities,
other than any person who acquires five percent (5%) or more of the outstanding
common stock of the Company in accordance with a plan of reorganization under
chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii)
the Company shall merge with or consolidate into any other entity, other than a
merger or consolidation which would result in the holders of the voting
securities of the Company outstanding immediately prior thereto holding
immediately thereafter securities representing more than fifty percent (50%) of
the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation or
(iii) the stockholders of the Company approve and effect an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets. Notwithstanding the foregoing, no Change in Control of the Company shall
be deemed to have occurred by virtue of any transaction which results in
Executive, or any group, association or other organization of persons related
to, including, or acting in concert with Executive ("Related Persons"),
acquiring, directly or indirectly, any interest in the Company which would
otherwise constitute a Change of Control. Further, the restriction in the
preceding sentence shall apply in the event of Executive's employment by, or any
other business affiliation with, any such Related Persons or the Company after
such Change of Control for a period of 12 months following such Change of
Control.
Please confirm your agreement to the above modifications by executing
the enclosed copy of this letter in the place provided and returning it to me.
Sincerely,
Xxxxxx A.S.L., Ltd.
By: /s/ Xxxx X. Idol
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Xxxx X. Idol
Agreed:
/s/ Xxxx Xxxx
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Xxxx Xxxx
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