EXHIBIT 10.21
FIRST AMENDMENT
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This First Amendment to Executive Employment Agreement (this "First
Amendment") is made as of January 9, 1996 by and between Xxxxxx Xxxxx
("Executive") and AMSERV HEALTHCARE INC., a Delaware corporation (the
"Company").
RECITALS
Whereas, Executive and the Company entered into an Executive Employment
Agreement as of March 21, 1995 (the "Agreement") relating to certain terms and
conditions of Executive's employment with the Company.
Whereas, Executive and the Company have determined that it is in their mutual
best interests and desire to amend and modify the Agreement as more
particularly set forth herein.
AMENDMENT TO AGREEMENT
Now, Therefore, in consideration of the mutual covenants in this First
Amendment and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Company and Executive agree as
follows:
1. Subsection 5.2 of the Agreement is amended by replacing the phrase
"within thirty (30) miles of any office of the Company" with "within thirty
(30) miles of any office of the Company, or in the event of a Board Approved
Change in Control, within thirty (30) miles of any branch office of the
Company".
2. Section 6 of the Agreement is deleted in its entirety and the following
Section 6 is substituted therefore:
"6. Severance Payments
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6.1 Change in Control. Following a Change in Control of the Company, if
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during the thirty-six (36) months following such Change in Control, (i)
Executive is terminated by the Company without Cause or (ii) Executive
terminates employment with the Company (or its successor or assigns) for Good
Reason, the Company shall pay and provide Executive each of the following:
(a) Within five (5) business days after the effective date of the
termination of employment (the "Effective Date"), the Company (or its
successor or assigns) will pay Executive a lump sum cash payment equal to
three (3) times the average annual compensation that was includible in
Executive's gross income during each of the lesser of (i) the five (5) full
fiscal years immediately prior to the Effective Date and (ii) the number of
years Executive was employed by the Company immediately prior to the Effective
Date.
(b) Executive and her dependents shall continue to be covered for thirty-
six (36) months after the Effective Date by all survivor rights, insurance and
benefit programs of the Company (or its successor or assigns) in type and
amount at least equivalent to that provided to her and her dependents by the
Company immediately prior to the Change in Control; provided that if
participation in any one or more of such arrangements is not possible under
the terms thereof, the Company (or its successor or assigns) will provide
substantially identical benefits outside of the programs. The cost of this
coverage will be paid by the Company (or its successor or assigns).
(c) Upon the occurrence of a Change in Control of the Company, if, during
the six (6) months following such Change in Control, Executive terminates
employment with the Company (or its successor or assigns) without Good Reason,
then within five (5) business days after the Effective Date, the Company shall
pay to Executive an amount equal to thirty percent (30%) of the amount
described in Section 6.1(a) above.
6.2 Board Approved Change in Control. Following a Board Approved Change
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in Control of the Company, if, during the twenty-four (24) months following such
Board Approved Change in Control, (i) Executive's employment is terminated by
the Company (or its successor or assigns) without Cause or (ii) Executive
terminates employment with the Company (or its successor or assigns) because of
(x) a relocation of Executive's employment which is unacceptable to Executive,
(y) reduction of Executive's compensation or benefits (other than across-the-
board reductions which are applicable to all executive employees), or (z)
assignment to Executive by the Company of any duties which are inconsistent
with, a diminution of or an adverse change in the Executive's position,
including increasing in a substantial way the amount of travel required by
Executive, then the Company shall pay and provide to Executive each of the
following, provided that Executive, if requested by the Company, continues her
employment and performs her duties for a transition period ending at the time
her services are no longer needed by the Company or six months from the notice
of termination by either party, whichever is sooner, and remains available to
assist the Company by telephone for a reasonable time thereafter:
(a) Within five (5) business days after the Effective Date the Company
(or its successor or assigns) shall pay Executive a lump sum payment equal to
twelve (12) months of the highest monthly Base Salary received by Executive in
any one of the sixty (60) months immediately prior to such Effective Date.
(b) Executive and her dependents shall continue to be covered for twelve
(12) months after such Effective Date by all survivor rights, insurance and
benefit programs of the Company (or its successor or assigns) in type and
amount at least equivalent to that provided to her and her dependents by the
Company immediately prior to the Board Approved Change in Control; provided
that if participation in any one or more of such arrangements is not possible
under the terms thereof, the Company (or its successor or assigns) will
provide substantially identical benefits outside of the programs. The cost of
this coverage will be paid by the Company (or its successor or assigns).
6.3 Gross Up of Severance Payments. If all or any portion of the amounts
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payable to Executive under this Agreement, either alone or together with other
payments which Executive has the right to receive from the Company, constitute
"excess parachute payments" (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code")), that are subject to the excise
tax imposed by Section 4999 of the
Code (or similar tax and/or assessment), the Company (or its successor or
assigns) shall increase the amounts payable pursuant to this Section 6 to the
extent necessary to place Executive in the same after-tax position as she would
have been in had no such excise tax been imposed on the payments hereunder. The
determination of the amount of any such excise taxes shall initially be made by
the independent accounting firm employed by the Company immediately prior to the
Change in Control. If, at a later date, it is determined that the amount of
excise taxes payable by Executive is greater than the amount initially so
determined, then the Company (or its successor or assigns) shall pay Executive
an amount equal to the sum of (i) such additional excise taxes, (ii) any
interest, fines and penalties resulting from such underpayment, plus (iii) an
amount necessary to reimburse Executive for any income, excise or other taxes
payable by Executive with respect to the amount specified in (i) and (ii) above,
and the reimbursement provided by this (iii)."
3. Subsection 8(a) of the Agreement is amended by adding at the beginning of
such subsection the phrase "Subject to Executive's rights in Section 6 of the
Agreement,".
4. Subsection 8(c) of the Agreement is amended by replacing the phrase "(iv)
any amounts payable pursuant to SECTION 6(A) above" with "(iv) any amounts
payable pursuant to SECTION 6 above".
5. Section 9 of the Agreement is amended by adding after the definition of
"Affiliate" the following definition:
"BOARD APPROVED CHANGE IN CONTROL" means the happening during the term of
this Agreement of either of the following: (i) any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the federal Securities
Exchange Act of 1934 (the "Exchange Act")) acquires beneficial ownership (within
the meaning of rule 13d-3 promulgated under the Exchange Act) of greater than
50% of the then outstanding shares of common stock of the Company or (ii) the
stockholders of the Company approve a reorganization, merger, consolidation,
complete liquidation or dissolution of the Company, the sale or disposition of
all or substantially all of the assets of the Company or similar corporate
transaction, and such acquisition (as described in clause (i) above) or such
transaction (as described in clause (ii) above) is approved prior thereto by the
Company's Board of Directors in accordance with the Company's Bylaws."
6. Except as modified herein the terms and conditions of the Agreement
remain in full force and effect in accordance with their terms, and the
Agreement and this First Amendment shall be deemed to constitute one integrated
agreement.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Executive Agreement as of the date first above written.
AMSERV HEALTHCARE INC.
By: /s/ Xxxxxx X. Xxxx
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Its: President
EXECUTIVE
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
