SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment of Employment Agreement made as of the 30th day
of September, 2000, by and between DISABILITY REINSURANCE MANAGEMENT SERVICES,
INC., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxx, of Yarmouth,
Maine ("Executive").
WHEREAS, the Company and Executive are parties to a certain Employment
Agreement, dated as of August 31, 1998 (the "Agreement"); and
WHEREAS, pursuant to Section 4 of the Agreement, Executive has the
option, exercisable by notice given to the Company, to extend the Term of
Executive's employment under the Agreement for a further period that may extend
to September 30, 2001; and
WHEREAS, Executive and the Company have mutually agreed that said
extension option shall be considered exercised concurrently with the execution
of this Second Amendment; and
WHEREAS, as an inducement to, and in consideration of, Executive's
exercise of said extension option through September 30, 2001, the Company is
willing to execute and deliver this Second Amendment;
NOW, THEREFORE, for and in consideration of the foregoing and the
mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by both
parties hereto, the parties agree, effective the date hereof, the Agreement
shall be amended as follows:
1. In Section 1, amend the first sentence to read in its entirety
as follows:
"The Company will employ Executive, and Executive will serve the
Company, as a member of the Company's Board of Directors, a Managing
Director of the Company and an Executive Vice President of CORE and a
member of the CORE Executive Management Team, all on the terms and
conditions provided herein."
2. In Section 3, amend the third sentence to read in its entirety
as follows:
"During the Executive Extension and thereafter, the employment of
Executive hereunder shall continue until terminated (i) by Executive
with at least 30 days' advance prior notice to the Company or (ii) by
the Company or Executive pursuant to Section 8 hereof."
3. In Section 5:
(a) amend the first sentence of Section 5(a) by deleting
"$195,950" and substituting "$228,000 (effective January 1,
2000)" in its place.
(b) amend the second sentence of Section 5(a) to read in its
entirety as follows:
"Executive's salary shall not be reduced below the greater of this
amount or the Executive's previous twelve months' total cash
compensation (exclusive of bonuses) without Executive's consent."
4. In Section 7(a), amend the last sentence to read in its
entirety as follows:
"Executive shall be entitled to carry no more than one and one half
times the annual accrual rate of previously allowed vacation time
except as otherwise permitted by CORE's policies."
5. In Section 8, add the following new paragraphs (e), (f) and
(g):
(e) TERMINATION WITHOUT CAUSE; SEVERANCE. The Company may
terminate Executive's employment without cause by giving written notice
to Executive at least thirty (30) days prior to the effective date of
such termination of employment without cause, in which event
Executive's employment hereunder shall terminate and Executive shall be
entitled to the following payments:
(i) all amounts accrued and unpaid to Executive through
the termination date, including unpaid salary,
pro-rated earned bonus (if any), benefits and accrued
and unused vacation and sick time; and
(ii) severance payments comprising salary and health care
and dental benefits continuing for twelve (12) months
from the date of termination, such salary
continuation payments to be made bi-weekly, or
otherwise consistent with the Company's payroll
policies and shall be subject to applicable federal,
state and local payroll tax deductions and
withholdings.
Notwithstanding the requisite 30-day notice period, the
Company may elect to have Executive's services to the Company terminate
immediately, provided the Company pays Executive compensation and
benefits during the period after written notice has been delivered and
prior to the effective termination date.
(f) CHANGE IN CONTROL. In the event a "Change in Control" (as
defined below) occurs during the term of this Agreement and Executive's
employment is terminated by the Company without cause pursuant to
Section 8(e) hereof (including a non-renewal of the term) within twelve
(12) months of such a "Change in Control") of the Company or CORE, then
the "twelve (12) months from the date of termination" in Section
8(e)(ii) shall be revised to read "eighteen (18) months from the date
of termination (provided such payments shall be reduced to reflect any
salary, consulting fees or other compensation received by Executive for
services rendered after one (1) year from the termination date and
further provided, Executive shall timely report to the Company any such
compensation)."
For purposes of this Section 8(f), a "Change in Control" of
the Company or CORE shall be deemed to have occurred if any of the
following conditions are met:
(i) there is a merger or consolidation of CORE in which
(A) CORE is not the continuing or surviving
corporation or (B) a majority of the Board of
Directors of the surviving company were not directors
or officers of CORE prior to such merger or
consolidation;
(ii) the Company or CORE sells substantially all its
assets to a single purchaser or to a group of
associated purchasers;
(iii) at least 20% of the outstanding common stock of the
Company or at least two-thirds of the outstanding
common stock of CORE is sold, exchanged or otherwise
disposed of in one transaction or in a series of
related transactions;
(iv) any person or entity becomes directly or indirectly
the owner or beneficial owner of 50% or more of
CORE's outstanding stock;
(v) individuals who at the date hereof constitute the
Board of Directors of CORE cease to constitute a
majority thereof, provided that such change is the
direct or indirect result of a proxy fight or
contested election for positions on the Board of
CORE; or
(vi) the Board of Directors of CORE determines in its sole
and absolute discretion that there has been a change
in control of the Company or CORE.
(g) TERMINATION BY EXECUTIVE FOR GOOD REASON FOLLOWING A
CHANGE IN CONTROL. Within twelve months following a Change in Control
(as defined in Section 8(f)), Executive may terminate employment
hereunder for Good Reason (as defined below) upon thirty (30) days
prior written notice to the Company, in which event Executive's
employment hereunder shall terminate and Executive shall be entitled to
the following payments:
(i) all amounts accrued and unpaid to Executive through
the termination date, including unpaid salary,
pro-rated earned bonus (if any), benefits and accrued
and unused vacation and sick time; and
(ii) severance payments comprising salary and health care
and dental benefits continuing for 18 months from the
date of termination (provided such payments shall be
reduced to reflect any salary, consulting fees or
other compensation received by Executive for services
rendered after one year from the termination date and
Executive shall timely report to CORE any such
compensation), such salary continuation payments to
be made bi-weekly, or otherwise consistent with
CORE's payroll policies and shall be subject to
applicable federal, state and local payroll tax
deductions and withholdings.
Notwithstanding the requisite 30 day notice period in
Executive's notice, the Company may elect to have Executive's services
terminate immediately, provided the Company pays Executive compensation
and benefits during the period after written notice has been delivered
and prior to the effective termination date.
For the purposes of this Agreement "Good Reason" shall mean
the occurrence (without Executive's express written consent), of any of
the following acts by the Company, unless such act is corrected by the
Company prior to the date of termination specified in the notice of
termination given by Executive in respect thereof:
(i) the assignment to Executive of any duties
substantially inconsistent with Executive's status as
an executive officer of CORE, a substantial
alteration in the nature or status of Executive's
title and duties as set forth in Section 1 and 2, a
diminution in Executive's duties or the assignment to
a position of lesser authority or responsibility than
Executive had prior to the Change in Control;
(ii) any material breach by the Company of any material
provision of this Agreement;
(iii) any purported termination by the Company of
Executive's employment which is effected other than
as provided in this Agreement; or
(iv) the requirement that Executive be based at any office
or location other than one within a fifty (50) mile
radius of CORE's facilities in Portland, Maine.
6. Except as otherwise expressly amended modified and provided for in
this Amendment, all of the terms and conditions of the Agreement are hereby
ratified and shall be deemed to be incorporated herein and made a part hereof
and shall continue in full force and effect.
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IN WITNESS WHEREOF the parties hereto have set their hands and seals in
five (5) counterpart copies, each of which counterpart copy shall be deemed an
original for all purposes, as of the date and year first above written.
DISABILITY REINSURANCE MANAGEMENT
SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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Its President
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CORE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx XX
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Its CEO
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Executive:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
