Exhibit 10.3
EMPLOYMENT AGREEMENT AMENDMENT
EMPLOYMENT AGREEMENT AMENDMENT (this "Amendment") dated as of December
27, 2002, between Xxxxxx Corporation, a Delaware corporation (the "Corporation")
and Xxxxxxxx X. Xxxxx (the "Employee").
WHEREAS, the Corporation and the Employee are parties to an Employment
Agreement and amendments thereto dated February 1, 1999, July 1, 1999 and March
28, 2001 (the "Employment Agreement"), pursuant to which the Employee currently
serves as the Corporation's Chief Operating Officer and Chief Financial Officer;
and
WHEREAS, the Corporation has hired an investment banking firm and has
taken other steps to consider its alternatives in an attempt to maximize
shareholder value; and
WHEREAS, the Employee will be a key individual in the ongoing operation
of the Corporation; and
WHEREAS, in light of the foregoing the Corporation and the Employee
desire to enter into this Amendment in order to modify the Employment Agreement
as provided herein.
NOW THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 6(j): The following Section 6(j) shall be added to the
Employment Agreement:
(j) Change of Control Payment. Notwithstanding any provision of the
Employment Agreement to the contrary, upon the occurrence of a "change of
control" (as defined above in Section 6(e)(v)) or a "Change of Control" (as
defined in Section 18 of the Employment Agreement) and the earliest to occur of
(a), (b), or (c) below, the Employee shall be entitled to a lump sum payment
equal to one hundred and fifty percent (150%) of the greater of (i) his
annualized Salary rate in effect on the Termination Date (or in the case of (c)
below, the payment date) or (ii) the amount payable over the balance of the then
existing Employment Period
(a) the Employment Period is terminated by the Employee
for "good reason" as defined above in Section 6(e)(v)
(added by the Employment Agreement Amendment dated
July 1, 1999); or
(b) a "Termination Without Cause" (as defined above in
Section 6(d)) by the Corporation or any successor
thereto occurs within six (6) months following a
"change of control" (as defined above in Section
6(e)(v)) or a
"Change of Control" (as defined in Section 18 of the
Employment Agreement); or
(c) if the Employee has a right to terminate his employment
following a "change of control" pursuant to Section
6(e)(v) but nevertheless accepts continued employment
with the Corporation or any successor thereto.
Such lump sum payment shall be made pursuant to (i) clause (a) above as soon as
practicable following the Employee's Termination Date, (ii) clause (b) above on
the Employee's Termination Date, or (iii) clause (c) above on the 30th day after
the "change of control" (as defined above in Section 6(e)(v)) or "Change of
Control" (as defined in Section 18 of the Employment Agreement).
SECTION 6(k): The following Section 6(k) shall be added to the
Employment Agreement:
(k) Retention Payment. Notwithstanding any provision of the Employment
Agreement to the contrary, in the event of a "change of control" (as defined
above in Section 6(e)(v)) or a "Change of Control" (as defined in Section 18 of
the Employment Agreement), (i) if a "Termination Without Cause" (as defined
above in Section 6(d)) by the Corporation or any successor thereto occurs within
six (6) months following the date of the "change of control" (as defined above
in Section 6(e)(v)) or the "Change of Control" (as defined in Section 18 of the
Employment Agreement), or (ii) if the Employee remains employed by the
Corporation or any successor thereto for six (6) months from the date of the
"change of control" (as defined above in Section 6(e)(v)) or the "Change of
Control" (as defined in Section 18 of the Employment Agreement), the Employee
will receive an additional lump sum payment on the Employee's Termination Date
or upon the completion of said six (6) month employment period equal to sixty
percent (60%) of his annualized Salary rate in effect on the payment date.
The Retention Payment benefit payable pursuant to this Section 6(k)
shall be payable in addition to and not in lieu of any other benefit which may
be provided under the Employment Agreement.
SECTION 7. The following two (2) paragraphs shall be added to Section 7
of the Employment Agreement:
Notwithstanding anything herein to the contrary, this "Covenant Not to
Compete" shall have no force of effect, in the event that the Employee waives
the balance of the Severance Payments and thereby shortening the Severance
Period or the Non-renewal Severance Period, which waiver can be effectuated
after either: (i) six (6) months from the date of a "Change of Control" or (ii)
upon termination of the Employee, "without cause", whichever is earlier.
If Employee seeks to exercise his right to terminate the Employment
Period for "good reason", as set forth in Section 6(e)(v), Employee must do so
within six (6) months from the date of a "Change of Control".
In all other respects, the Employment Agreement shall remain in full
force and effect.
IN WITNESS THEREOF, the parties have executed this Amendment as of the
date first written above.
XXXXXX CORPORATION
By:________________________________
___________________________________
XXXXXXXX X. XXXXX
FOURTH AMENDMENT
FOURTH AMENDMENT (this "Fourth Amendment") effective as of January 31,
2003, between Xxxxxx Corporation, a Delaware Corporation (the "Corporation") and
Xxxxxxxx X. Xxxxx (the "Employee").
WHEREAS, the Corporation and the Employee entered into to an employment
agreement dated February 1, 1999 and amended pursuant to amendments thereto
dated July 1, 1999, March 28, 2001, and December 27, 2002 (collectively, the
"Employment Agreement");
WHEREAS, the Corporation and the Employee desire clarify and supplement
the terms set forth in the most recent amendment to the Employment Agreement by
entering into this Fourth Amendment.
NOW THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. The Employment Agreement is hereby amended as follows:
(a) Section 6(d)(vii) is hereby deleted and replaced in its entirety
with the following:
"(vii) other or additional benefits then due or earned in
accordance with applicable plans and programs of the Corporation,
payable in a lump sum upon the Termination Date to the extent
practicable."
(b) A new Section 6(d)(viii) is hereby added to read as follows:
"(viii) the Retention Payment (as hereinafter defined), payable
in accordance with Section 6(k) if such termination occurs on or
within the six-month period immediately following a Change of
Control."
(c) Section 6(j) is hereby deleted and replaced in its entirety with
the following:
"(j) Change of Control Payment.
Notwithstanding any provision of the Employment Agreement to the
contrary, upon the occurrence of a Change of Control (as defined
below), the Corporation (or its successor) shall pay to the
Employee a lump sum cash payment equal to one hundred and fifty
percent (150%) of his annualized Salary rate in effect on the
occurrence of the Change of Control (the "Change of Control
Payment"). Such Change of Control Payment shall be paid upon the
occurrence of the Change of Control, without regard to whether or
not the Employee continues his
employment with the Corporation (or its successor) following the
Change of Control.
The Change of Control Payment payable pursuant to this Section
6(j) of the Employment Agreement shall be payable in addition to
and not in lieu of any other benefit which may be provided under
the Employment Agreement, except, however, that such Change of
Control Payment shall be in lieu of the Salary continuation
benefit payable pursuant to Section 6(d)(ii) of the Employment
Agreement if the Employee's Employment is terminated by the
Corporation without Cause or by the Employee for Good Reason on
the date of the Change of Control."
(d) Section 6(k) is hereby deleted and replaced in its entirety with
the following:
"(k) Retention Payment. Notwithstanding any provision of the
Employment Agreement to the contrary, in the event of a Change of
Control, the Employee will be entitled to a lump sum cash payment
equal to sixty percent (60%) of his annualized Salary rate then
in effect on the earliest of:
(i) if on or after a Change of Control, but on or prior to
the six-month anniversary of the occurrence of the
Change of Control, a "Termination Without Cause" (as
defined above in Section 6(d) of the Employment
Agreement) by the Corporation (or any successor
thereto) or a termination by the Employee for Good
Reason (as defined above in Section 6(e) of the
Employment Agreement) occurs, in which case the
Retention Payment is payable within ten (10) days of
such termination, or
(ii) the six-month anniversary of the occurrence of the
Change of Control, if the Employee is employed by the
Corporation (or any successor thereto) on such date, in
which case the Retention Payment is payable on such
date.
The Retention Payment benefit payable pursuant to this Section
6(k) shall be payable in addition to and not in lieu of any other
benefit which may be provided under the Employment Agreement."
(e) A new Section 6(l) is hereby added to read as follows:
"(l) Excess Parachute Payment Reduction. It is the intention of
the Employee and the Corporation that no payment(s) made or to be
made pursuant to this Employment Agreement shall constitute an
"excess parachute payment" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder (the "Code") (or any
comparable successor provisions). If the independent accountants
acting as auditors for the Corporation (or any successor thereto)
determine in good faith
that any benefit(s) provided or to be provided pursuant to this
Employment Agreement constitutes or will constitute an "excess
parachute payment" as described above, and but for the provisions
of this Section 6(l) would be subject to the excise tax imposed
by Section 4999 of the Code (or any comparable successor
provisions)(the "Excise Tax"), then such benefit(s) shall be
provided to the Employee as reduced by such minimum amount (by
repayment by the Employee to the Corporation or otherwise) which
would result in no portion of such benefit(s) being subject to
the Excise Tax. In the event of a reduction of any benefit(s)
hereunder, the Employee shall be given the choice as to which
benefit(s) to reduce. For purposes of making the calculations
required by this Section 6(l), the Corporation's accountants may
make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of the Code, and other
applicable legal authority. The Corporation and the Employee
shall furnish to the Corporation's accountants such information
and documents as the Company's accountants may reasonably request
in order to make a determination under this Section 6(l). The
Corporation shall bear all costs of the Corporation's accountants
incur in connection with any calculations contemplated by this
Section 6(l)."
(f) The definitions of Change of Control set forth in Section 6(e)(v)
(added by the Employment Agreement Amendment dated July 1, 1999)
and in Section 18 are hereby deleted and replaced by the
following definition of Change of Control:
""Change of Control" shall mean an event or series of events by
which (i) any person (or entity) is or becomes the "beneficial
owner" (as defined in rules 13d-3 and 13d-5 under the Securities
and Exchange Act of 1934, as amended, except that a person shall
be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is
exercisable immediately or after the passage of time), directly
or indirectly, of a majority of the then outstanding voting stock
of the Corporation; (ii) the Corporation consolidates with or
merges into another entity or any entity consolidates with or
merges into the Corporation, in either event pursuant to a
transaction in which then outstanding voting stock of the
Corporation is changed into or exchanged for cash, securities or
other properties, other than any such transaction where the
holders of the voting stock of the Corporation immediately before
such transaction, own, immediately after such transaction, voting
stock of such surviving entity entitling them to more than fifty
(50%) percent of the aggregate voting power of all voting stock
of such surviving entity; or (iii) the Corporation conveys,
transfers or leases all or substantially all of its assets to any
person or entity."
Section 2. Except as specifically amended above, the Employment Agreement
and all provisions thereof shall remain in full force and effect and are hereby
ratified and confirmed.
Section 3. Upon the effective date of this Amendment, on and after the date
hereof, each reference in the Employment Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference to
the Employment Agreement in any document relating to the Employment Agreement,
shall mean and be a reference to the Employment Agreement as amended hereby.
Section 4. This Fourth Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
Section 5. Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified, or ascribed thereto by reference, in the Employment
Agreement.
IN WITNESS THEREOF, the parties have executed this Addendum as of the
date first written above.
XXXXXX CORPORATION
_______________________________________
By: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
_______________________________________
XXXXXXXX X. XXXXX
