EXHIBIT 10.9
FORM OF SECOND AMENDMENT TO DEFERRED COMPENSATION AGREEMENT
THIS AMENDMENT is made this 3rd day of June, 1998, between
XXXXXX'X, INC., a Wisconsin corporation ("Xxxxxx'x") and [EMPLOYEE
NAME] ("Employee").
RECITALS:
1. The Employee and Xxxxxx'x are parties to a "Deferred
Compensation Agreement" dated as of April 16, 1997, as
previously amended (the "Existing Agreement").
2. The Parties desire to amend the Existing Agreement further, in
the manner set forth herein.
AGREEMENT:
Therefore, in consideration of the premises and the Employee's
continued employment with Xxxxxx'x, Xxxxxx'x and the Employee
hereby agree as follows:
1. Amendment of Existing Agreement. Section 3 of the
Existing Agreement is renumbered subsection 3(a), and a new
subsection 3(b) is inserted to read as follows:
"(b) Notwithstanding anything contained in the preceding
subsection 3(a) or elsewhere in this Agreement, in the
event any payments or other benefits otherwise receivable
by the Employee hereunder are determined to be "parachute
payments" (as hereinafter defined), under no
circumstances shall the Deferred Compensation Amount
exceed the "Maximum Amount" (as hereinafter defined).
The "Maximum Amount" for this purpose means a dollar
amount equal to (i) three (3) times the Employee's "base
amount" (as hereinafter defined), minus (ii) all other
amounts constituting parachute payments received or
receivable by the Employee in respect of the same Change
of Control, minus (iii) one dollar. The terms "parachute
payment" and "base amount" shall have the meanings given
them in Section 280G of the Internal Revenue Code of
1986, as amended from time to time (or the corresponding
provisions of any future tax laws that may be enacted in
substitution for or in place of said section) and the
Treasury Regulations and other interpretations of said
Section in existence from time to time, except that
"parachute payment" shall be defined without reference to
clause (ii) of subparagraph 280G(b)(2)(A). In the event
of any dispute between the Employee and Xxxxxx'x with
respect to the interpretation and effect of this
subsection 3(b) (including, without limitation, the
calculation of the Employee's base amount or the total
amount of parachute payments received or receivable by
the Employee), the matter shall be submitted for a
determination by Xxxxxx'x outside certified public
accountants, which determination shall be final and
binding on the parties."
2. Agreement Otherwise Remains in Effect. Except as
expressly set forth above, the Existing Agreement remains in force
and effect in accordance with its original terms.
IN WITNESS WHEREOF, the parties have executed this Amendment,
as of the date first written above.
XXXXXX'X, INC.
By:
Xxxxxx X. Xxxxxxx, President & CEO
Attest: ______________________,
Xxxxxx X. Xxxx, Vice President, Sec'y & Treasurer
