Exhibit 10.59
FIRST AMENDMENT TO EMPLOYMENT
AND NONCOMPETITION AGREEMENT
This First Amendment to Employment and Noncompetition Agreement (this
"AMENDMENT") is entered into as of the __ day of February, 2001 ("EFFECTIVE
DATE") by and between Marketing Specialists Sales Company, a Delaware
corporation and successor-in-interest by merger to Xxxxxxx Enterprises, Inc., a
Massachusetts corporation ("EMPLOYER") and Xxxxx Xxxxxx, an individual residing
in the State of Massachusetts ("EXECUTIVE").
PRELIMINARY STATEMENTS
A. Executive and Employer entered into that certain Employment and
Noncompetition Agreement ("AGREEMENT"), dated as of December 18, 1998.
B. Subject to the terms and conditions below, Employer and Executive
desire to amend the Agreement to expand Executive's covenant not to
compete to include manufacturers and customers of Employer and to
extend the term of the Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein set forth, and other good and valuable consideration, the adequacy and
receipt thereof being hereby acknowledged, Executive and Employer have agreed to
amend the Agreement as hereafter provided.
STATEMENT OF AGREEMENT
1. AMENDMENT TO NONCOMPETITION PROVISIONS. The Agreement is hereby
amended by adding a new provision to Section 7(d) of the Agreement to
expand the definition of the term "Restricted Business" to include
"Principals" and "Customers" as defined in Section 7(e) of the
Agreement. As of the Effective Date, the term "Restricted Business"
shall mean:
(A) any business which is competitive with any business conducted by
Employer on the date of the termination of Executive's employment
with Employer, and
(B) any business which is competitive with any business conducted by
the Employer within the twelve (12) month period immediately
preceding the termination of Executive's employment with
Employer, and
(C) any business which is competitive with any business Employer
actively considered entering within twelve(12) months preceding
the date of the termination of Executive's
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employment with Employer if the Executive has knowledge of such
consideration and Employer in fact commences conducting such
business during the Restricted Period. Notwithstanding the
foregoing, Executive may own up to one percent (1%) of the
outstanding stock of a publicly held corporation which
constitutes or is affiliated with a Restricted Business, and
(D) any business of a Principal or Customer (as defined in subsection
7(e) of the Agreement) that as of the date of Executive's
termination for any reason (i) had a relationship with Employer
at any time during the twelve (12) months immediately preceding
Executive's termination, (ii) has a relationship with Employer at
the time of Executive's termination, or (iii) has a relationship
with Employer that is terminated within twelve (12) months
immediately following the date of Executive's termination from
Employer.
2. CONSIDERATION FOR AMENDMENT. As consideration for the execution and
compliance with the terms of this Amendment, Employer shall pay to
Executive a one (1) time, lump sum, bonus payment of Twenty Five
Thousand Dollars ($25,000) ("Bonus"). Such Bonus shall be paid to the
Executive within ten (10) days of the Effective Date of this Amendment
and shall be subject to all applicable taxes and withholding
requirements
3. EXTENSION OF TERM. The Agreement is amended by deleting Section 3 in
its entirety, and in lieu thereof, inserting the following new Section
3:
Subject to the provisions of Section 6, the term of
employment pursuant to the Agreement and this Amendment shall be
three (3) years from the Effective Date of this Amendment
("Initial Term")and shall continue month to month thereafter
("Extended Term"), subject to either party's thirty (30) day
advance notice of non-renewal ("Non-renewal Notice").
3. BENEFITS AND PERQUISITES. The Agreement is amended by adding the
following new provision to Section 4(d):
(iv) COUNTRY CLUB DUES. During the Initial Term and any Extended
Term, Employer shall reimburse Executive for his membership
dues to a country club selected by Executive and approved by
Employer. Executive shall be responsible for submitting this
expense to Employer in accordance with Employer's
reimbursement policies.
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5. OTHER TERMS. Except as stated herein, all other terms, conditions and
provisions of the Agreement shall remain in full force and effect.
6. COUNTERPARTS. This Amendment may be executed in multiple counterparts
each of which shall be an original, but all of which taken together
shall constitute one instrument.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by the
undersigned effective as of the date first set forth above.
EXECUTIVE:
____________________________________
Xxxxx Xxxxxx
____________________________________
Date
MARKETING SPECIALISTS SALES COMPANY:
By:_________________________________
Name:_______________________________
Title:______________________________
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