EXHIBIT 10.25
CMC Heartland Partners
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
[date]
Xx. Xxxxx Xxxxxxxx
161 East Chicago Avenue
Apartment 43H
Xxxxxxx, Xxxxxxxx 00000
Re: First Amendment to Employment Agreement
Dear Xx. Xxxxxxxx:
We are writing with respect to your employment by CMC Heartland
Partners (the "Company") as President and Chief Executive Officer of the
Company, pursuant to an Employment Agreement, dated December 20, 1999 (the
"Employment Agreement"), the terms of which expire on May 30, 2002. The Company
acknowledges and recognizes the value of your experience and abilities to the
Company and desires to amend the Employment Agreement as hereinafter set forth:
Therefore, subject to your signing and returning to the Company, c/o
Xxxxxxx X. Xxxxxxxxxxxx, a duplicate original of this letter, effective as of
the date hereof, the Employment Agreement is amended in the following manner:
1. Section 1 and Section 7(d)(i) are hereby amended to delete the
date "May 30, 2002" and substitute therefor the date "May 30, 2005";
2. Section 3(a) is hereby amended to delete "$275,000" and substitute
therefor "$350,000";
3. Section 3(b)(ii)(1) is hereby deleted in its entirety and replaced
with the following Section 3(b)(ii)(1):
"(ii) (1) The Capital Amount initially will be $26,789,044.75, which
is equal to the product of (x) the average of the publicly reported
per Unit closing sales prices for the first 30 trading days after the
date the Units were distributed by Chicago Milwaukee Company ("CMC")
to its common stockholders (the "Distribution Date") and (y) 2,142,438
(the number of Units distributed on the Distribution Date). For
purposes of this subsection (ii), the "closing sales prices" of the
Units as of a particular date shall mean the closing price (or, if
there is no closing price, then the mean between the closing bid and
asked prices), of such Unit as reported on the Composite Tape, or if
not reported thereon, then such price as reported in the trading
reports of the principal securities exchange in the United States on
which such partnership interests are listed, or if the Units are not
listed on a securities exchange in the United States, the mean between
the dealer closing "bid" and "asked" prices as reported by the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or NASDAQ's successor, or if not reported on NASDAQ, the
fair market value of such Unit as determined by the Board of Directors
of the Managing General Partner in good faith."
4. Section 3(b)(ii)(2)(x)(ii) is hereby deleted in its entirety and
replaced with the following Section 3(b)(ii)(2)(x)(ii):
"(ii) amounts paid by Heartland or the Company to repurchase
Units and Class B limited partnership interests during such time
period and"
5. Section 3(b) is amended by the addition of the following Section
3(b)(iii):
"(iii) In addition to the incentive payments that you will receive
pursuant to Section 3(b)(i), effective for the period commencing January 1,
2000 and continuing thereafter during the time you are an employee of the
Company, you will also receive incentive payments equal to 1/2% override of
net proceeds from sales of real estate (after deducting all debt
obligations on the property sold, seller's sales closing costs (including,
but not limited to title changes and transfer taxes) and any real estate
broker's commissions, which incentive payment shall be paid on the 15/th/
day of the following month in which the respective sale of the real estate
occurred."
6. Section 3(b) is amended by the addition of the following Section
3(b)(iv):
"(iv) (1) Upon your death, disability or termination without cause
(as that term is defined in Section 6(c)), you, your designated
beneficiary or estate upon written notice (the "Put Notice") delivered
to the Company shall cause the Company to pay to you, your designated
beneficiary or estate, as the case may be (collectively referred to as
"Xxxxxxxx"), the then present value of your incentive payments under
Section 3(b)(i) (the "Incentive Put"). In the event the Incentive Put
is exercised by the Put Notice delivered to the Company, within 45
days after receipt of the Put Notice, the Board of Directors of the
Company shall, in good faith based upon the appraised value of the
assets of the Company, make a determination as to the then present
value of such incentive payments and prior to the expiration of the 45
day period shall deliver to Xxxxxxxx a statement (the "Company
Statement") setting forth the amount the Company proposes to pay to
satisfy its obligation under the Incentive Put and a calculation on
which the amount was determined.
(2) If Xxxxxxxx does not object in writing, delivered to the
Company within 20 days after receipt of the Company Statement, the
Company shall pay the incentive amount set forth in the Company
Statement no later than six months following the date of receipt by
the Company of the Put Notice.
(3) If prior to the expiration of the 20 day period Xxxxxxxx
delivers to the Company written notice (the "Objecting Notice")
objecting to the amount of the incentive payment set forth in the
Company Statement, the Company and Xxxxxxxx shall negotiate in good
faith to reach agreement on the amount of the incentive payment. If
during the 15 day period following receipt by the Company of the
Objecting Notice, or such longer period as the Company and Xxxxxxxx
agree in
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writing (the "Negotiating Period"), the Company and Xxxxxxxx reach
agreement on the amount of the incentive payment, the Company shall
pay the amount no later than six months following the date the Company
received the Put Notice.
(4) If during the Negotiating Period, the Company and Xxxxxxxx do
not reach agreement on the amount of the incentive payment (the
"Disagreement"), the Disagreement shall be submitted for resolution to
an M.A.I. Appraiser selected by the Company and Xxxxxxxx. If within
10 days following the expiration of the Negotiating Period, the
Company and Xxxxxxxx are not able to reach an agreement on the M.A.I.
Appraiser to resolve the Disagreement, the Company and Xxxxxxxx within
15 days following expiration of the Negotiating Period shall each
select an M.A.I. Appraiser and the two M.A.I. Appraisers promptly
after their selection shall each select a third M.A.I. Appraiser,
which may not be the Company's M.A.I. Appraiser. The third M.A.I.
Appraiser prior to the expiration of sixty days after its selection
shall make a determination as to the then present value of the
incentive payment payable pursuant to the Incentive Put and shall
deliver to the Company and Xxxxxxxx written notice of the amount
determined (the "Resolution Notice"). The determination by the third
M.A.I. Appraiser shall be binding on the Company and Xxxxxxxx and the
Company shall pay the amount no later than the longer of (x) six
months after the date the Company received the Put Notice or (y)
thirty days after the Company received the Resolution Notice. The
fees and expenses of the M.A.I. Appraiser resolving the Disagreement
shall be shared equally between the parties."
Except as amended by this letter, the Employment Agreement remains in
full force and effect in accordance with its terms.
If the foregoing is satisfactory, please indicate your agreement by
signing and returning to the Company the enclosed copy of this letter whereupon
this will constitute our agreement on the subject.
CMC HEARTLAND PARTNERS
By: Heartland Technology, Inc.
as General Managing Partner
By: ______________________________
Name: ______________________________
Title: ______________________________
ACCEPTED AND AGREED TO:
______________________________
Xxxxx Xxxxxxxx
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