EXHIBIT 10.30
AMENDMENT
TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made as of December 1, 2002
by and between OM GROUP, INC., a Delaware corporation ("Company"), and Xxxxxx X.
Xxxxxxx, an individual ("Executive").
WHEREAS, the parties entered into a certain employment agreement dated
May 1, 2002 (the "Agreement"), with respect to the employment of the Executive
by the Company; and
WHEREAS, the Executive requested to have certain provisions of the
Agreement clarified or amended; and
WHEREAS, the Company is agreeable to making such revisions since it has
decided that the request is reasonable and that the continued services of the
Executive are beneficial to the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereby agree that the Agreement is hereby amended, effective
as of December 1, 2002, in the following respects:
1. Section 1 of the Agreement is hereby amended to provide as
follows:
1. EMPLOYMENT AND TERM. The Company agrees to employ
Executive and Executive agrees to be employed by the Company during the
term of the Agreement, subject to the provisions hereinafter set forth.
Unless terminated earlier as specifically provided herein, the initial
term of the Agreement shall commence on May 1, 2002 and continue until
November 30, 2005; provided, however, that the Agreement shall be
renewed automatically for one additional 12-month period on each
anniversary of December 1, 2002 (an "Anniversary Date"), unless either
the Company or Executive gives contrary written notice to the other
party at least six months prior to an Anniversary Date. The term of the
Agreement as renewed pursuant to the above provisions shall be 36
months as of an Anniversary Date.
2. Paragraph (d) of Section 3 of the Agreement is hereby amended to
provide as follows:
(d) RETIREMENT BENEFITS. Upon the termination of Executive's
employment without Cause (as hereinafter defined), Executive shall be
entitled to receive from the Company an annual amount equal to the
annual benefit that Executive would have been eligible to receive under
the supplemental executive retirement plan (in effect as of February 1,
2000) of his immediate prior employer (the "SERP"), including any
applicable Offsets as defined in the SERP, if: (a) he had remained
employed and covered by the SERP until the later of the term of the
Agreement, and (b) his Earnings (as defined under the SERP) with such
prior employer has increased at the rate of five percent per annum;
provided, however, that such amount shall be reduced by the actuarial
equivalent of any amounts which Executive is entitled to receive that
are: (i) attributable to Company Contributions (as defined in the OMG
Americas, Inc. Employees' Profit-Sharing Plan (the "PROFIT-SHARING
PLAN") or any successor thereto) made to the Profit-Sharing Plan, or
(ii) payable under the Benefit Restoration Plan or any other
supplemental pension or severance plan, program or arrangement
maintained by the Company. Actuarial equivalency for such purposes
shall be the applicable mortality rate and applicable interest rate
defined in Section 417(e)(3)(A)(ii) of the Internal Revenue Code of
1986, as amended. Notwithstanding the foregoing, in the event the
Company establishes a supplemental executive retirement plan in the
future, the Executive shall receive the greater of: (i) the benefit
described above, or (ii) the benefit under such newly established plan.
3. Paragraph (b) of Section 4 of the Agreement is hereby amended to
provide as follows:
(b) TERMINATION WITHOUT CAUSE OR BY EXECUTIVE. If the Company
terminates Executive's employment without Cause, the Company shall pay
Executive for the number of months remaining under the term of the
Agreement: (i) 100% of his total annual salary in effect on the date of
his termination; and (ii) his "EARNED BONUS". Executive's earned bonus
shall equal the ESTIMATED ANNUAL BONUS, as defined below, divided by 12
and then multiplied by the number of months remaining under the term
of the Agreement. The Estimated Annual Bonus shall equal the greater of
(x) the average of the Executive's annual incentive bonus paid to
Executive by the Company over the most recent three years or the length
of his employment, if less and (y) 75% of Executive's annual base
salary in effect on the date of termination. Payments made under this
Section 4(b) shall be payable during the term of the Agreement pursuant
to the payroll practices of the Company. If Executive resigns, the
Company shall pay Executive the amount determined under the above
provisions for twelve months provided that any such resignation occurs
on or after November 30, 2004. The healthcare, life insurance, and
nonqualified retirement benefits as well as the use of the car to which
Executive was entitled, or was accruing, on the date of any such
termination or resignation shall be continued with respect to Executive
for the period during which payments are made to the Executive pursuant
to the above provisions. Restricted stock granted to the Executive
shall vest immediately in the event of Termination by the Company
without cause or by Executive.
4. Paragraph (d) of Section 4 of the Agreement is hereby amended to
provide as follows:
(d) TERMINATION FOR DISABILITY. The Company shall have the
right to terminate Executive's employment on or after the date of
Executive incurs a
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Disability, and such termination shall be treated as a termination
without cause, except that any payments received pursuant to Section
4(b) shall be offset by any disability payments received pursuant to
any disability benefit plan maintained by the Company. Disability for
purposes of the Agreement shall mean a condition that renders Executive
unable (as determined by the Company in good faith, based upon the
opinion of a physician selected by the Company) to regularly perform
his duties hereunder by reason of illness or injury for a period of
more than six consecutive months.
5. Subparagraphs (e)(i) and (c)(ii) of Section 4 of the Agreement a
hereby amended to provide as follows:
(i) pay Executive's designated beneficiary or if there is
no designated beneficiary, Executive's estate, his base salary in
effect on the date of his death for the period of the term of the
Agreement;
(ii) pay Executive's designated beneficiary or if there is
no surviving beneficiary, Executive's estate, his earned bonus,
determined pursuant to the provisions of Section 4(b), for the year in
which Executive's death occurs;
(iii) restricted stock granted to the Executive shall vest
immediately; and
Subparagraph (e)(iii) is renumbered (e)(iv).
IN WITNESS WHEREOF, the Company has caused this Amendment to Employment
Agreement to be executed by its duly authorized officer and Executive has
executed this Amendment to Employment Agreement as of the date first above
written.
OM GROUP, INC. EXECUTIVE
By: By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
APPROVED:
/s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Chairman, Compensation Committee
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