Exhibit 10.1
AMENDMENT TO EXHIBIT B OF EMPLOYMENT AGREEMENT
NON-SOLICITATION AND NON-COMPETE AGREEMENT
This document serves as an amendment to Exhibit B to that certain
Employment Agreement ("Agreement") made as of the 31st day of January, 1998, by
and between Xxxxxx Technologies, Inc. (hereinafter called the "Company") and
Xxxxx X. Xxxxx (hereinafter called the "Employee").
The parties hereto agree that Section 4 of the Exhibit B of the
Agreement will be replaced with the following effective as of the date of
execution hereof:
4. SEPARATION BENEFITS.
A. PROVISION OF SEPARATION BENEFITS. In the event that the
Employee's employment with all members of the Company Group is
terminated, the Company shall, subject to the requirement of
Paragraph B below, provide the separation benefits specified
in Paragraph C below unless the Employee's termination of
employment results from:
1. The Employee voluntarily resigning or otherwise
terminating his employment or services (including job
abandonment, death or disability) with any member of
the Company Group for any reason unless such
termination is a Constructive Discharge.
2. The termination of the Employee's employment by a
member of the Company Group at a time when the
Employee has an offer of immediate employment with
another member of the Company Group.
3. The termination of the Employee's employment by a
member of the Company Group for "Cause".
B. SEPARATION BENEFITS CONTINGENT ON EXECUTED AND VALID RELEASE.
No separation benefits specified in Paragraph C below shall be
provided to the Employee unless and until the Employee has
executed a separation and release agreement with the Company
(see attachment - Separation and Release Agreement), and such
separation and release agreement has become valid and
enforceable. Such separation and release agreement shall
contain provisions in which (1) the Employee shall agree to a
date of termination of employment with all members of the
Company Group, and (2) the Employee shall release and
discharge the Company Group and their related employees,
directors, consultants, advisors, and other persons from any
claim or liability, whether known or unknown, arising out of
the Employee's employment with members of the Company Group or
the termination of such employment.
C. SEPARATION BENEFITS TO BE PROVIDED. The separation benefits
that the Employee shall receive under Paragraph A above shall
consist of:
1. A cash amount equal to one-twelfth (1/12) of the
regular annual salary (exclusive of bonuses,
commissions, and any other extra compensation) of the
Employee in effect as of the Employee's date of
termination of employment multiplied by the number of
months of the Employee's Separation Period, which
shall be paid to the Employee in installments
consistent with the Company's general payroll
practices over the Employee's Separation Period; and
2. Reimbursement of any COBRA group health plan premiums
paid to a group health plan of the Company by the
Employee and/or any of the Employee's covered
dependents for the coverage of the Employee and/or
any of the Employee's covered dependents during the
Separation Period. However, notwithstanding the
foregoing, in the event that the Employee and his
covered dependents become entitled, by reason of
subsequent employment with an employer, to group
health plan coverage under a
group health plan of such subsequent employer, the
Employee shall promptly provide written notification
to the Company of such entitlement, and no
reimbursements of COBRA group health plan premiums
shall be paid to the Employee after the date on which
the Employee and his dependents became entitled to
such coverage. Reimbursements of any COBRA group
health plan premiums will be made to the Employee
within fifteen (15) days following submission of
proof of the expense and the payment thereof by the
Employee and/or his covered dependents.
3. Should the Employee and all of his covered dependents
not elect any COBRA continuation coverage under any
of the Company's group health plans, the Company
shall pay to the Employee an amount in cash equal to
one-half (1/2) the amount that would have been
reimburseable to the Employee under subsection 2
above assuming (1) that the Employee had elected
COBRA continuation coverage for himself and all of
his covered dependents, and (2) that Employee had
submitted evidence of such COBRA premium expenses on
the date that the COBRA premiums would have been due.
In the event that the Employee becomes entitled, by
reason of subsequent employment with an employer, to
group health plan coverage for himself and his
covered dependents under a group health plan of such
subsequent employer, the Employee shall promptly
provide written notification to the Company of such
entitlement, and no further payments under this
subsection 3 shall be paid to the Employee after the
date on which such notification is received.
4. Continuation of Relocation Benefits as outlined in
the Relocation Agreement executed on July 11, 2001 by
and between the Employee and the Company.
All payments under this Paragraph C will be subject
to applicable federal, state and local tax
withholdings. In the event of the death of Employee
before all payments under this Paragraph C have been
paid to the Employee, the remaining payments required
under this Paragraph C shall be paid to the
Employee's estate.
D. DEFINITIONS. For this purpose, the following terms shall have
the following meanings:
1. The term "Disability" shall mean that the Employee
has been determined to be disabled under the
company's long-term disability plan, if any, and/or
under the Federal Social Security Act.
2. The term "Cause" shall mean an act or acts by the
Employee involving (a) the use for profit or willful
disclosure to unauthorized persons of confidential
information or trade secrets of the Company, a Parent
or a Subsidiary in violation of company policy or
company agreements with such persons protecting such
matters, (b) the material and willful breach of any
written contract between the Employee and the
Company, a Parent or a Subsidiary, or of any
employment or business policies of the Company, a
Parent or a Subsidiary (including, without
limitation, theft or misuse of Company property) (c)
the unlawful trading in the securities of the
Company, a Parent or a Subsidiary, or of another
corporation based on information gained as a result
of the performance of services for the Company, a
Parent or a Subsidiary, (d) a conviction for, or
pleading NOLO CONTENDERE to, a felony or other crime
involving moral turpitude or dishonesty (other than
traffic violations and similar misdemeanors), or (e)
any other act or omission by Employee which is in
violation of the Agreement or written company policy
and which the Company in good faith believes has
occurred to its material detriment and about which
Employee has received at least one (1) written
warning by the Company
2
and despite such prior written warning, Employee has
on a second occasion committed such act or omission.
3. The term "Company Group" shall mean the Company and
any parent or subsidiary of the Company (or a
successor entity of any such entity).
4. The term "Separation Period" shall mean twelve (12)
months; provided, however, to the extent that the
Employee receives any payments of base salary,
excluding any earned vacation pay, prior to his
termination of employment for a period of time while
he is performing no (or DE MINIMIS) services for the
Company Group, such period of time shall be
subtracted from his Separation Period.
5. The term "Constructive Discharge" shall mean a
termination of employment by the Employee within
thirty (30) days following notice to the Employee of
any of the following:
(a) FORCED RELOCATION OR TRANSFER. The Employee
may continue employment with a member of the
Company Group, but such employment is
contingent on the Employee being transferred
to a site of employment that is located more
than fifty (50) miles from the Employee's
current site of employment. For this
purpose, a Employee's site of employment
shall be the site of employment to which the
Employee is assigned as his or her home
base, from which the Employee's work is
assigned, or to which the Employee reports.
(b) DECREASE IN SALARY OR POTENTIAL BONUS. The
Employee may continue employment with a
member of the Company Group, but such
employment is contingent upon the Employee's
acceptance of (i) a salary or wage rate
which is less than the Employee's prior
salary or wage rate, or (ii) a reduction in
the bonus or incentive compensation that the
Employee has the opportunity to receive
pursuant to a plan or agreement approved by
the Board ("Target Bonus"), with Target
Bonus defined as a percentage of base salary
or base compensation plus any additional
performance over-achievement component
provided pursuant to such plan or agreement.
Notwithstanding the foregoing, the Board
shall have the authority on an annual basis
to change the performance criteria set forth
in any such plan or agreement pursuant to
which an Employee's Target Bonus is
determined and such action shall not
constitute a "Constructive Discharge."
(c) SIGNIFICANT AND SUBSTANTIAL REDUCTION IN
BENEFITS. The Employee may continue
employment with a member of the Company
Group, but such employment is contingent
upon the Employee's acceptance of a
reduction in the benefits provided by one or
more employee benefit plans (as defined in
ERISAss.3(3)) of the Company which is both
significant and substantial when expressed
as a dollar amount or when expressed as a
percentage of the Employee's cash
compensation. The determination of whether a
reduction in benefits provided by employee
benefit plans is significant and substantial
shall be made on the basis of all pertinent
facts and circumstances, including the
entire benefit package provided to the
Employee, and any salary or wages paid to
the Employee. However, notwithstanding the
preceding, any modification or elimination
of benefits which results solely from the
provision of new benefits to Employee as a
result of (1) a change of the Employee's
employment from employment with one member
of the Company Group to another member of
the Company Group, (2) a change or
elimination of benefits where such changed
or eliminated benefits effect similarly
situated executive employees, or (3) the
provision of new benefits by a successor
employer as a result of a change of the
Employee's employment from employment with a
member
3
of the Company Group to employment with such
successor, shall not be deemed a Significant
and Substantial Reduction in Benefits.
(d) SIGNIFICANT DIMINUTION OF DUTIES. Without
the Employee's consent, the Employee's
duties and responsibilities (and, for
periods PRIOR to the occurrence of any
"Change of Control" (as defined in the
Xxxxxx Technologies, Inc. 2001 Broad-Based
Stock Incentive Plan), the Employee's title)
as an employee are significantly reduced or
altered such that the Employee's duties and
responsibilities (or title, if applicable)
are not comparable in scope or type to the
Employee's duties and responsibilities (or
title, if applicable) prior to such change.
(e) COMPANY'S BREACH OF EMPLOYMENT AGREEMENT.
The Company (or a successor employer)
materially breaches the terms of any written
employment agreement or comparable agreement
that is in place between the Company and the
Employee, and the Company fails to remedy
such breach following notice of breach from
the Employee and a reasonable opportunity to
cure.
All other provisions of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set forth their
signatures as of this 10TH day of SEPTEMBER, 2001.
EMPLOYEE: COMPANY:
Xxxxxx Technologies, Inc.
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
By: /s/ Xxxxx Xxxxxx
--------------------------------
Its: CHIEF EXECUTIVE OFFICER
4
