Exhibit 10.54
TBC MANAGEMENT, LTD.
AMENDMENT TO EMPLOYMENT AGREEMENT
April 5, 2001
This Amendment to Employment Agreement (the "Amendment") is made
effective as of the Effective Date, and is made a part of and should be attached
to that certain Letter Agreement (the "Agreement") dated November 16, 1999 by
and between Xxxxxxx X. Xxxxxxx ("Employee") and TBC Management, Ltd., a Texas
limited partnership (the "Company") and agreed to and accepted by Xxxxxx Boats &
Motors, Inc., a Texas corporation ("Xxxxxx Boats"). Terms used herein and not
otherwise defined have the meanings ascribed to them in the Agreement.
WHEREAS, Section 10 of the Agreement includes certain mistakes related
to the definition of a change of control; and
WHEREAS, the parties to the Agreement wish to correct such mistakes by
executing this Amendment.
NOW, THEREFORE, the parties to the Agreement agree that Section 10 of
the Agreement is hereby amended and restated in its entirety to read as follows:
"10. Change of Control. The Company acknowledges that you
agreed to assume your position with the Company and to enter into this
Agreement based upon his confidence in the current shareholders of
Xxxxxx Boats and the support of the Xxxxxx Boats Board of Directors
(the "Board") for the development of a new strategy for Xxxxxx Boats.
Accordingly, if Xxxxxx Boats should undergo a "Change of Control," as
defined in this section, the parties agree as follows:
(a) For purposes of this Agreement, a "Change of Control"
shall be deemed to exist in the event that any of the following occurs:
(i) a change in the ownership of the capital stock of
Xxxxxx Boats where a corporation, person or group acting in concert (a
"Person") as described in Section 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), holds or acquires,
directly or indirectly, beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of a number of shares of
capital stock of Xxxxxx Boats which constitutes 40% or more (or, 30% or
more in the event Xxxxxx Boats is subject to the reporting requirements
of Sections 12 or 15(d) under the Exchange Act) of the combined voting
power of Xxxxxx Boats' then outstanding capital stock then entitled to
vote generally in the election of directors; or
(ii) the persons who were members of the Board
immediately prior to a tender offer, exchange offer, contested election
or any combination of the foregoing, cease to constitute a majority of
the Board; or
(iii) a dissolution of Xxxxxx Boats, or the adoption
by Xxxxxx Boats of a plan of liquidation, or the adoption by Xxxxxx
Boats of a merger, consolidation or reorganization involving Xxxxxx
Boats in which Xxxxxx Boats is not the surviving entity, or a sale of
all or substantially all of the assets of Xxxxxx Boats (for purposes of
this Agreement, a sale of all or substantially all of the assets of
Xxxxxx Boats shall be deemed to occur if any Person acquires, or during
the 12-month period ending on the date of the most recent acquisition
by such Person, has acquired, gross assets of Xxxxxx Boats that have an
aggregate fair market value equal to 50% or more of the fair market
value of all of the gross assets of Xxxxxx Boats immediately prior to
such acquisition or acquisitions); or
(iv) a tender offer or exchange offer is made by any
Person which, if successfully completed, would result in such person
beneficially owning (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) either 50% or more of Xxxxxx Boats' outstanding
shares of Common Stock or shares of capital stock having 50% or more of
the combined voting power of Xxxxxx Boats' then outstanding capital
stock (other than an offer made by Xxxxxx Boats), and sufficient shares
are acquired under the offer to cause such person to own 30% or more of
the voting power; or
(v) a change in control is reported or is required to
be reported by Xxxxxx Boats in response to either Item 6(e) of Schedule
14A of Regulations 14A promulgated under the Exchange Act or Item 1 of
Form 8-K promulgated under the Exchange Act, which change in control
has not been approved by a majority of the Board then in office who
were directors at the beginning of the two-year period ending on the
date the reported change in control occurred; or
(vi) during any period of two consecutive years,
individuals who, at the beginning of such period constituted the entire
Board, cease for any reason (other than death) to constitute a majority
of the directors, unless the election, or the nomination for election,
by Xxxxxx Boats' stockholders, of each new director was approved by a
vote of a least a majority of the directors then still in office who
were directors at the beginning of the period.
For purposes of paragraph 10(a)(i) above, if a Person were the
beneficial owner of 30% or more or 40% or more, as applicable, of the
combined voting power of Xxxxxx Boats' then outstanding securities as
of the Effective Date and such Person thereafter accumulates more than
5% of additional voting power, a Change of Control of Xxxxxx Boats
shall be deemed to have occurred, notwithstanding anything in this
Agreement to the contrary. A Change of Control shall include any other
transactions or series of related transactions occurring which have
substantially the same effect as the transactions specified in any of
the preceding clauses of paragraph 4(a)(i)-(vi). However, a Change of
Control shall not be deemed to occur if a person becomes the beneficial
owner of the applicable percentage or more (as referenced above) of the
combined voting power of the company's then outstanding securities
solely by reason of Xxxxxx Boats' redemption or repurchase of
securities; but further acquisitions by such Person that cause such
Person to be the beneficial owner of the applicable percentage or more
(as referenced above) of the combined voting power of Xxxxxx Boats'
then outstanding securities shall be deemed a Change of Control.
(b) In the event of a Change of Control, as defined in this
section, all stock options then held by you for the purchase of equity
securities of Xxxxxx Boats shall immediately become vested, effective
on the date of the Change of Control.
(c) In the event of a Change of Control, as defined in this
section, for the purposes of paragraph 9(a)(v) above, a material change
would include, but not be limited to, the situation in which the
Company or Xxxxxx Boats does not offer, or alternatively, you in your
reasonable discretion do not accept, a revised and amended Agreement
with terms and conditions at least as favorable as those contained in
the Agreement."
EXECUTED, to be effective as of the Effective Date.
TBC Management, Ltd.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chairman of
the Board of Xxxxxx Boats &
Motors, Inc.,
its Managing General Partner
Employee
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
AGREED TO AND ACCEPTED:
Xxxxxx Boats & Motors, Inc.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman of the Board
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman of the Compensation Committee
Of the Board of Directors
