EXHIBIT 10.3(b)
FIRST AMENDMENT TO
EXECUTIVE SEVERANCE AGREEMENT
This Amendment ("Amendment Agreement") is entered into as of 28th day of
January, 1999 between ESKIMO PIE CORPORATION, a Virginia corporation ("Eskimo
Pie"), and Xxxxxxxx X. Xxxxxxxx ("Executive").
WHEREAS, Eskimo Pie and Executive previously entered into a Severance
Agreement dated August 21, 1995 (the "Severance Agreement") for the purposes of
maintaining strong and experienced management for Eskimo Pie; and
WHEREAS, the Compensation Committee and the Board of Directors of Eskimo
Pie have each determined that certain revisions should be made to said Severance
Agreement; and
WHEREAS, the Compensation Committee and the Board have each carefully
reviewed the information presented to them and have determined that the
anticipated benefits to Eskimo Pie from entering into this Amendment Agreement
with Executive, thereby encouraging his continued attention and dedication to
his duties, exceed the anticipated costs to Eskimo Pie of entering into such
Amendment Agreement; and
WHEREAS, the Compensation Committee and the Board have each concluded
this Amendment Agreement is in the best interests of Eskimo Pie and its
stockholders;
NOW, THEREFORE, to assure Eskimo Pie that it will have the continued
dedication of Executive and the availability of his advice and counsel
notwithstanding the possibility or occurrence of a change in control of Eskimo
Pie, and to induce Executive to remain in the employ of Eskimo Pie, and for
other good and valuable consideration, Eskimo Pie and Executive agree as
follows:
THE FOLLOWING NEW SECTION 2(e) IS ADDED TO THE SEVERANCE AGREEMENT:
(e) Interest on Delayed Payments. If payment of any benefit due
to Executive under this Section 2 is not timely made, Executive shall be
entitled to interest on the amount not timely paid at 120% of the
applicable federal rate, compounded semi-annually, under Section 1274(d)
of the Code determined at the time the Change in Control occurs, such
interest to accrue from the date such payment is due through the date of
payment thereof.
SECTION 8 OF THE SEVERANCE AGREEMENT IS AMENDED TO READ AS FOLLOWS:
8. Adjudication and Expenses.
(a) If a dispute or controversy arises under or in connection
with this Agreement, Executive shall be entitled to an adjudication in
an appropriate court of the State of Virginia, or in any other court of
competent jurisdiction. Alternatively, Executive, at Executive's option,
may seek an award in arbitration to be conducted by a single arbitrator
under the Commercial Arbitration Rules of the American Arbitration
Association.
(b) If any contest or dispute shall arise under this Agreement
involving the failure or refusal of Eskimo Pie to perform fully in
accordance with the terms hereof, Eskimo Pie shall reimburse Executive,
on a current basis, for all legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the
result thereof), together with interest in an amount equal to the prime
rate of BankAmerica from time to time in effect, but in no event higher
than the maximum legal rate permissible under applicable law, such
interest to accrue from the date Eskimo Pie receives Executive's
statement for such fees and expenses through the date of payment
thereof. Such reimbursement shall include the cost of attorney's fees in
reviewing this Agreement in connection with such contest or dispute and
in negotiating or attempting to negotiate a settlement of such contest
or dispute prior to Executive's making such claim or commencing any
action or proceeding and in settling any matter relating to this
Agreement
(c) If any claim, action or proceeding (including without
limitation a claim, action or proceeding by Executive against Eskimo
Pie) occurs with respect to this Agreement other than one described in
Section 8(b), Eskimo Pie shall pay or reimburse Executive for all costs
and expenses, including without limitation court costs and attorneys'
fees, incurred by Executive as a result thereof, provided that if the
claim, action or proceeding is by Executive against Eskimo Pie,
Executive is successful in whole or in part on the merits or otherwise
in such claim, action or proceeding. Such reimbursement shall include
interest in an amount equal to the prime rate of BankAmerica from time
to time in effect, but in no event higher than the maximum legal rate
permissible under applicable law, such interest to accrue from the date
Eskimo Pie receives Executive's statement for such fees and expenses
through the date of payment thereof.
SECTION 10(i) OF THE SEVERANCE AGREEMENT IS AMENDED TO READ AS FOLLOWS:
(i) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Virginia.
THIS AMENDMENT AGREEMENT IS EFFECTIVE AS OF JANUARY 7, 1999.
EXCEPT AS HEREINABOVE MODIFIED, THE SEVERANCE AGREEMENT SHALL REMAIN IN FULL
FORCE AND EFFECT.
Each of the parties has therefore caused this Agreement to be executed
on its or his behalf as of the date first written above.
ESKIMO PIE CORPORATION
By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
EXECUTIVE
/s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
