EXHIBIT 10.4
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment"), is made this
20th day of August, 2001, between XXXXXXXXXX.XXX, INC, a Delaware corporation
(the "Company") and Xxxxxx X. Xxxxxxx (the "Executive").
The Company and the Executive have heretofore entered into an Employment
Agreement dated as of January 28, 2000 (the "Agreement") (capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Agreement). The Compensation Committee ("Compensation Committee") of the Board
of Directors of the Company (the "Board") has agreed to amend the Agreement to
provide for certain additional benefits to the Executive.
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. AMENDMENTS. Effective as of the date hereof, the Agreement shall be
amended in its entirety to read as follows:
(a) Section 2 of the Agreement shall be amended in its entirety to read as
follows:
"2. Term of Agreement. Subject to the terms and conditions hereof,
the term of the Executive's employment pursuant to this Agreement (the
"Term") shall be three years and such Term shall automatically extend by
one day for each day elapsed, so that at all times the Term shall be for
a three-year period; provided, however, if at any time the Company or the
Executive delivers a written notice to the other (an "Expiration Notice")
to the effect that the Agreement shall expire on a date specified in the
Expiration Notice that is three years after the date the Expiration
Notice is delivered to the Company or the Executive, as the case may be,
then the Term shall expire on the date specified in the Expiration
Notice."
(b) Section 3 of the Agreement shall be amended in its entirety to read as
follows:
"3. Position and Duties. The Executive shall serve as the President,
Corporate and Business Development, of the Company, shall perform
substantially the same duties as he currently performs and shall have
substantially the same authority as he currently exercises. The
Executive shall report to, and shall have such other powers and duties as
may from time to time be delegated to him by, the Chief Executive Officer
or, if there is no Chief Executive Officer, the highest ranking executive
officer of the Company, or, following a Change in Control (as defined
below), the senior executive, board or committee established pursuant to
the terms of the Change of Control that is responsible for the unit or
division of which the Company has become a part; provided that such
duties are generally consistent with his present duties and with the
Executive's position. The Executive shall devote substantially all of
his working time and efforts during normal business hours to the business
and affairs of the Company in substantially the same manner (both as to
working time and effort) as the Executive has devoted to the Company in
the past; provided, that it shall not be a violation of this Agreement
for the Executive to (i) serve on corporate, civic or charitable boards
or committees, and (ii) deliver lectures or fulfill speaking engagements,
so long as such activities are approved by the executive or body to which
the Executive reports and do not interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance
with this Agreement."
(c) The second paragraph of Section 8(d) of the Agreement shall be amended in
its entirety to read as follows:
"For purposes of this Agreement, "Good Reason" means, without the
Executive's prior written consent, the occurrence of any one or more of
the following: (A) any action by the Company which results in a material
diminution in the nature or status of the Executive's position,
authority, duties or responsibilities; (B) a failure by the Company to
pay any amounts of Base Salary, Annual Bonus or other amounts payable
hereunder, or to comply with its other obligations and agreements
contained herein; (C) a failure of the Company to obtain an agreement
from any successor to the Company to assume and agree to perform this
Agreement, as contemplated in Section 10(c) hereof; (D) Executive no
longer reports directly to the person(s) specified in Section 3 hereof,
or (E) any purported termination by the Company of the Executive's
employment that is not effected pursuant to a Expiration Notice or a
Notice of Termination satisfying the requirements of Section 2 or
subsection 8(e), respectively, and otherwise in accordance with the terms
of this Agreement, and for purposes of this Agreement, no such
termination shall be effective. Notwithstanding anything in this
Agreement to the contrary, Good Reason shall not be deemed to exist as a
result of one or more of the following: (i) changes in the nature or
status of the Executive's position, authority, duties or responsibilities
solely as a result of the Company becoming part of a unit or division of
a larger entity pursuant to or following a Change of Control; (ii) any
change in the Executive's title(s), so long as the Executive's duties
remain generally consistent with those he presently performs; or (iii) so
long as the Executive remains responsible for the Company's corporate and
business development functions, the delegation to other executives or
employees of the Company of other responsibilities or duties that are
presently performed by the Executive or may be delegated to him from time
to time, including but not limited to the responsibility for heading the
Company's legal affairs function and merchandising efforts."
(d) Section 9(a) of the Agreement shall be amended in its entirety to read as
follows:
"(a) Death. If the Executive's employment is terminated by
reason of his death, the Company shall pay to such person as the
Executive shall have designated in a notice filed with the Company, or,
if no such person has been designated, to his estate, any unpaid amounts
of his Base Salary or Annual Bonus accrued prior to the
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date of his death; and upon making such payments, the Company shall have
no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of the
Executive's death pursuant to Section 5(c)); provided, that the
Executive's spouse, beneficiaries or estate shall also be entitled to
receive any amounts or other benefits payable pursuant to any pension or
employee benefit plan, life insurance policy or other plan, program or
policy then maintained or provided by the Company in accordance with the
terms thereof. In addition, all unvested Awards (as defined in the
Company's 1997 Incentive Compensation Plan), including, but not limited
to, stock options and/or unvested restricted Company securities, held by
the Executive on the Date of Termination shall continue to vest in
accordance with the vesting schedule for such Awards then in effect, and
upon vesting shall (x) in the case of stock options, become exercisable
and (y) in the case of restricted Company securities, no longer be
subject to forfeiture or any other conditions or restrictions on
transfer. Moreover, each such stock option that vests pursuant to the
preceding sentence, together with any previously vested and unexercised
stock options, shall be exercisable in accordance with their respective
terms for a period of one (1) year following the date on which it becomes
vested (or, in the case of any previously vested and unexercised options,
one (1) year following the Date of Termination) or, if earlier, until the
then scheduled expiration date(s) of such options."
(e) Section 9(b) of the Agreement shall be amended in its entirety to read as
follows:
"(b) Disability. During any period that the Executive fails to
perform his duties hereunder as a result of incapacity due to physical or
mental illness, the Executive shall continue to receive his Base Salary
and any Annual Bonus until the Executive's employment is terminated
pursuant to Section 8(b) hereof, or until the Executive terminates his
employment pursuant to Section 8(d)(ii) hereof, whichever first occurs.
If the Executive's employment is terminated by reason of his Disability,
the Company shall pay to the Executive any unpaid amounts of his Base
Salary or Annual Bonus accrued prior to the date of such termination; and
upon making such payments, the Company shall have no further liability
hereunder (other than for reimbursement for reasonable business expenses
incurred prior to the date of such termination pursuant to Section 5(c));
provided, that the Executive shall also be entitled to receive any
amounts or other benefits payable pursuant to any pension or employee
benefit plan, life insurance policy or other plan, program or policy then
maintained or provided by the Company in accordance with the terms
thereof. In addition, all unvested Awards, including but not limited to
stock options and/or unvested restricted Company securities, held by the
Executive on the Date of Termination shall continue to vest in accordance
with the vesting schedule for such Awards then in effect, and upon
vesting shall (x) in the case of stock options, become exercisable and
(y) in the case of restricted Company securities, no longer be subject to
forfeiture or any other conditions or restrictions on transfer.
Moreover,
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each such stock option that vests pursuant to the preceding sentence,
together with any previously vested and unexercised stock options, shall
be exercisable in accordance with their respective terms for a period of
one (1) year following the date on which it becomes vested (or, in the
case of any previously vested and unexercised options, one (1) year
following the Date of Termination) or, if earlier, until the then
scheduled expiration date(s) of such options. Notwithstanding anything in
this section to the contrary, all such vesting of Awards shall
discontinue immediately, and any unexercised options shall terminate and
be cancelled immediately upon a breach by the Executive of the provisions
of Section 7 hereof or the Executive's acceptance of employment with
another entity."
(f) Section 9(d)(i)-(ii) of the Agreement shall be amended in its entirety to
read as follows:
"(i) within thirty (30) days after the Date of Termination, the
Company shall pay the Executive an amount equal to the sum of: (i) his
accrued but unpaid Base Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given (or the Date of
Termination where no Notice of Termination is required hereunder) and
(ii) a pro rata portion of the most recent Annual Bonus paid to the
Executive (taking into consideration any accrued but unpaid Annual Bonus
which is paid pursuant to this Section 9(d)(i)) based on the number of
days elapsed in the current fiscal year prior to the Date of Termination,
together with any accrued incentive compensation and other amounts to
which the Executive is then entitled under any plan, policy, practice or
program of the Company at the time such payments are due; and
(ii) in lieu of any further salary, incentive compensation or other
payments for periods subsequent to the Date of Termination, and as a
severance benefit to the Executive, the Company will pay to the Executive
in equal bi-weekly installments for a period of two (2) years following
the date of termination an amount equal to the sum of (i) two (2) times
the Executive's annual Base Salary in effect at the time Notice of
Termination is given (or the Date of Termination where no Notice of
Termination is required hereunder), plus (ii) an amount equal to the two
(2) times the greater of (x) the average Annual Bonus paid to the
Executive for the prior three years or (y) the amount of the most recent
Annual Bonus paid to the Executive."
(g) The first paragraph of Section 9(e) of the Agreement shall be amended in
its entirety to read as follows:
"(e) Acceleration of Vesting; Sale of Shares. Unless the
Company terminates the Executive's employment for Cause, the Executive
terminates his employment for other than Good Reason or the Executive's
employment is terminated due to his death or Disability, upon (i)
termination of the Executive's employment or (ii) a Change of Control,
all unvested Awards, including, but not limited to stock options and/or
restricted Company securities, held by the Executive on the Date of
Termination shall immediately vest and upon vesting shall (x) in the
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case of stock options, become exercisable and (y) in the case of
restricted Company securities, no longer be subject to forfeiture or any
other conditions or restrictions on transfer. Moreover, each such stock
option that is deemed vested pursuant to the preceding sentence, together
with any previously vested and unexercised stock options, shall be
exercisable by the Executive in accordance with their respective terms
for a period of one (1) year following the Date of Termination or the
date of the Change in Control, as the case may be, or, if earlier, until
the then scheduled expiration date(s) of such options. The Company shall
provide the Executive such cooperation and assistance as may reasonably
be necessary to effect cashless exercises of such stock options and the
sale of any such restricted Company security beneficially owned by the
Executive at the Date of Termination. Furthermore, upon a Change of
Control caused by CBS Broadcasting Inc. ("CBS") or any of its affiliates,
pursuant to the issuance of securities by the Company to CBS or any
affiliate thereof, becoming the "beneficial owner" (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly,
of securities of the Company representing forty percent (40%) or more of
the combined voting power of the Company's outstanding securities
entitled to vote generally in the election of directors (a "CBS Change of
Control"), in addition to the accelerated vesting of Awards as set forth
in this Section 9(e), the Executive shall be entitled, in the Executive's
sole discretion, upon written notice to the Company within 60 days after
the date of the CBS Change of Control, to surrender any or all stock
options then held by such Executive with an exercise price greater than
the Fair Market Value (defined below) of the Company's common stock on
the date of such CBS Change of Control to the Company in exchange for
shares of common stock of the Company awarded pursuant to the Plan at an
exchange rate of one share of common stock for every two options
surrendered. For the purposes of this Agreement, the "Fair Market Value"
of the Company's common stock as of any given date shall be (i) the
closing sale price per share reported on a consolidated basis for the
common stock as listed on the Nasdaq National Market or the principal
stock exchange or market on which the common stock is traded on the date
as of which such value is being determined or, if there is no sale on
that date, then on the last previous day on which a sale was reported or
(ii) if the common stock is not listed on an exchange or market, the fair
market value of the common stock as determined by the Board."
(h) Immediately following Section 9(e), a new Section 9(f) shall be added to
the Agreement to read as follows:
"(f) Maintenance of Benefit. Unless the Executive is terminated for
Cause, the Company shall maintain in full force and effect, for the
continued benefit of the Executive and/or his family for two (2) years
after termination for any reason, all employee medical, health and
hospitalization plans and programs in which the Executive and/or his
family was entitled to participate in immediately prior to the Date of
Termination provided that the continued participation of the Executive
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and/or his family is possible under the general terms and provisions of
such plans and programs. In the event that the participation of the
Executive and/or his family in any such plan or program is barred, the
Company shall arrange to provide the Executive and/or his family with
benefits substantially similar to those which the Executive and/or his
family would otherwise have been entitled to receive under such plans and
programs from which his or their continued participation is barred."
(i) Section 12 of the Agreement shall be amended in its entirety to read as
follows:
"12. Notice. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
If to the Company: XxxxxxXxxx.xxx, Inc.
0000 X. Xxxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notices and communications
shall be effective when actually received by the addressee."
2. EFFECTIVE DATE. This Amendment shall be effective upon its execution by
the Company and the Executive.
3. COUNTERPARTS. This Amendment may be executed in counterparts and by
different parties hereto in separate counterparts each of which, when so
executed and delivered, shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same instrument.
4. NO OTHER MODIFICATION. Except as otherwise expressly modified by the
terms and provisions of this Amendment, the Agreement shall remain in full force
and effect, and is hereby in all respects confirmed and ratified by the parties
hereto.
5. REFERENCES TO AGREEMENT. From and after the effective date hereof, each
reference in the Agreement to "this Agreement," "hereto," "hereunder" or words
of like import, and all references to the Agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every kind and
nature shall be deemed to mean the Agreement as modified and amended by this
Amendment.
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IN WITNESS WHEREOF, the Company and the Executive have executed this First
Amendment to Employment Agreement as of the date first written above.
XXXXXXXXXX.XXX, INC
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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