EXHIBIT 10.1
AMENDMENT NO. 1 TO
XXXXX X. XXXX
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 1 to Executive Employment Agreement, dated as of August
17, 2004 (the "Amendment") is by and between Xxxxxxx Entertainment Company, a
Delaware corporation having its corporate headquarters at Xxx Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000 (the "Company") and Xxxxx X. Xxxx, a resident of
Nashville, Davidson County, Tennessee ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive entered into that certain Executive
Employment Agreement dated as of April 23, 2001 (the "Employment Agreement"),
pursuant to which, among other things, the Company hired the Executive to be its
Chief Executive Officer;
WHEREAS, the Company and Executive have now agreed to various amendments
to the Employment Agreement including, but not limited to, an extension of the
term of the Employment Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements hereafter
set forth, the parties hereto agree as follows:
1. Amendment of Section 1 of Employment Agreement. The second sentence
of Section 1 of the Employment Agreement is deleted in its entirety and replaced
with the following new sentence:
"The term of Executive's employment hereunder shall commence
on April 23, 2001 (the "Effective Date") and shall continue for a
period up to and including May 1, 2008 (the "Employment Period")."
2. Amendment of Section 2(a)(ii) of Employment Agreement. A second
sentence shall be added to Section 2(a)(ii) of the Employment Agreement as
follows:
"In addition, commencing with the May 2005 annual meeting of
stockholders of the Company and subject to approvals required by the
Delaware Business Corporation Act and the Company's Certificate of
Incorporation and Bylaws, Executive shall perform the duties of
Chairman of the Board as described by the Company's Restated Bylaws,
as amended from time to time."
3. Amendment of Section 3(c)(ii) of the Employment Agreement. The
following sentence is added to the end of Section 3(c)(ii) of the Employment
Agreement:
"Notwithstanding the foregoing or anything herein to the contrary,
the Company may in lieu of the bonus payments described herein adopt an
incentive program for the purpose of providing performance incentive
awards to Executive that qualify as "performance based compensation"
within the meaning of section 162(m) of the Internal Revenue Code."
4. Amendment of Section 4(a) of the Employment Agreement. The last
sentence of Section 4(a) of the Employment Agreement is deleted in its entirety
and replaced with the following:
"If Executive remains employed by Company until April 23, 2005, he
shall be entitled to exercise the Stock Options at any time prior to the
expiration date of the Stock Option Term notwithstanding anything to the
contrary in the Company's Omnibus Plan."
5. Amendment of Section 5(a) of Employment Agreement. Section 5(a) of
the Employment Agreement is deleted in its entirety and it is replaced with the
following new Section 5(a):
"Custom Non-Qualified Mid-Career Supplemental Employee
Retirement Plan. Executive shall be entitled to a nonqualified
supplemental executive retirement benefit (the "SERP"). Company
agrees to pay Executive a retirement benefit which will have a value
of $2,500,000.00 upon the expiration of four (4) years from the
Effective Date (the "Initial SERP Benefit"). The Initial SERP
Benefit will accrue and vest at the rate of 25% for each complete
year over a four (4) year period beginning with the Effective Date
to a value after four (4) years of $2,500,000.00. The Initial SERP
Benefit will be adjusted for hypothetical investment earnings (or
losses) beginning April 23, 2005 until paid to Executive, based on
the investment performance of one or more mutual funds selected by
Executive in his sole discretion. Company shall not be responsible
for the quality of the investment performance of any such fund(s).
In addition, Company agrees to pay Executive a retirement benefit
which will have a value of $1,000,000.00 on April 23, 2010 (the
"Additional SERP Benefit"), provided that Executive continues to be
employed by the Company through such date. The Additional SERP
benefit will accrue and vest at the rate of 20% on each May 1st over
a five (5) year period beginning with the fourth anniversary of the
Effective Date, provided that Executive remains employed by the
Company during such period, to a value after five (5) years of
$1,000,000.00 as adjusted for hypothetical investment earnings (or
losses). The Additional SERP Benefit will be adjusted for
hypothetical investment earnings (or losses) beginning April 23,
2005 until paid to Executive, based on the investment performance of
one or more mutual funds selected by Executive in his
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sole discretion. Company shall not be responsible for the quality of
the investment performance of any such fund(s). Except as otherwise
set forth in this Agreement, and subject to deferral pursuant to
Section 6, the Initial SERP Benefit and the Additional SERP Benefit,
as adjusted for hypothetical investment earnings (or losses)
beginning April 23, 2005 based on the investment performance of one
or more mutual funds selected by Executive in his sole discretion
(collectively, the "SERP Benefit") shall, to the extent then vested,
be payable upon the expiration of the term of this Agreement.
Executive may elect to receive the SERP Benefit in the form of one
(1) lump sum payment or equal annual installments over a period not
exceeding fifteen (15) years. Such election by Executive shall be
made at any time, and from time to time, on or before the last day
of the calendar year immediately preceding the calendar year in
which the SERP Benefit first becomes payable.
The Company reserves the right to provide benefits described
in this Section 5(a) under a separate, written deferred compensation
plan or arrangement. The terms and conditions of all benefits
described in this Section 5(a) may be modified by the Company to the
extent necessary to comply with the requirements for deferred
compensation arrangements imposed by the Internal Revenue Code, as
amended from time to time.
For example purposes, a schedule of vesting for the SERP
Benefit based upon the provisions of this Section 5(a) is attached
hereto as Exhibit A and made a part hereof."
6. Amendment to Section 5(h) of Employment Agreement. Section 5(h) of
the Employment Agreement is deleted in its entirety and is replaced with the
following new Section 5(h):
"Attorney's Fees. Executive shall be entitled to reimbursement
for reasonable attorney's fees and expenses incurred by Executive in the
review and negotiation of this Agreement and any proposed Amendments to
this Agreement, upon submission of documentation evidencing such fees and
expenses."
7. Amendment to Include Retirement Health Coverage. A new Section 5(j)
is added to the Employment Agreement as follows:
"Retiree Health Coverage. The Company shall provide Executive
and his wife Xxxxxx Xxxx (and no subsequent spouse or any other
dependent) on the day immediately preceding his employment
termination date (other than a termination date resulting from a
termination by Company for Cause or by Executive without Good
Reason) with medical benefits (including health care, dental,
prescription and vision) until the earliest of the following occurs:
(i) the deaths of Executive and his wife Xxxxxx Xxxx; (ii) Executive
terminates his coverage under the plan; (iii) failure of Executive
or his wife to make
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premium payments as required under the plan; or (iv) Company ceases
to offer medical benefits to any of its active employees. If
Executive terminates his coverage under the plan (except in the case
of death), his wife's coverage is also terminated. Once Executive or
his wife's coverage is terminated, it cannot be reinstated for any
reason. Executive shall pay the full cost to Company of providing
him and his wife with coverage under the plan as determined by
Company in its sole discretion. Coverage made available to Executive
and his wife shall be identical to that made available to active
employees of the Company that are in positions of similar status and
responsibility as the Executive. Such benefit continuation coverage
may be provided through an insurance contract, benefit plan or
similar arrangement, at the Company's discretion"
8. Amendment of Section 6(b) of Employment Agreement. Section 6(b) of
the Employment Agreement is deleted in its entirety and is replaced with the
following:
"(b) Vesting of Deferred Compensation; Investment Earnings.
All such deferred payment obligations shall be fully vested and
shall be adjusted for hypothetical investment earnings (or losses)
until paid to Executive. The rate of investment earnings (or losses)
of such deferred amounts shall be equal to the rate of investment
earnings (or losses) of one or more mutual funds selected by
Executive, in his sole discretion. The Company shall not be
responsible for the quality of the investment performance of any
such fund(s)."
9. Amendment to Section 8(d) of Employment Agreement. The term "a
reasonable time" shall be deleted from the first sentence of Section 8(d) and
replaced with "90 days."
10. Amendment to Section 9 of the Employment Agreement.
(a) Section 9(a) of the Employment Agreement is deleted in its
entirety and it is replaced with the following new Section 9(a):
"Effect Generally. If Executive's employment is terminated on
or prior to May 1, 2008, the Company shall not have any liability or
obligation to Executive other than as specifically set forth in
Section 8, Section 9 and Section 10 hereof. Upon termination of
Executive's employment for any reason, he shall, upon the request of
Company, resign from the Board of Directors."
(b) Section 9(b)(iv) of the Employment Agreement is deleted in its
entirety and is replaced with the following new sentence:
"(iv) a pro-rata portion of the SERP Benefit with the vested
portion of the SERP Benefit equal to the sum of (a) the Initial SERP
Benefit multiplied by a fraction, the numerator of which is the
total
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number of months (including any fractional month) during which
Executive was employed hereunder (up to 48), and the denominator of
which is 48; such vested portion of the Initial SERP Benefit to
include hypothetical investment earnings (or losses) beginning April
23, 2005 until paid to Executive, based on the investment
performance of one or more mutual funds selected by Executive, in
his sole discretion, and (b) the Additional SERP Benefit multiplied
by a fraction, the numerator of which is the total number of months
(including any fractional month) during which Executive was employed
hereunder less 48 (up to 60), and the denominator of which is 60;
such vested portion of the Additional SERP Benefit to include
hypothetical investment earnings (or losses) beginning April 23,
2005 until paid to Executive, based on the investment performance of
one or more mutual funds selected by Executive, in his sole
discretion;"
(c) Section 9(c)(iv) of the Employment Agreement is deleted in its
entirety and is replaced with the following new sentence:
"(iv) a pro-rata portion of the SERP Benefit with the vested
portion of the SERP Benefit equal to the sum of (a) the Initial SERP
Benefit multiplied by a fraction, the numerator of which is the
total number of months (including any fractional month) during which
Executive was employed hereunder (up to 48), and the denominator of
which is 48; such vested portion of the Initial SERP Benefit to
include hypothetical investment earnings (or losses) beginning April
23, 2005 until paid to Executive, based on the investment
performance of one or more mutual funds selected by Executive, in
his sole discretion, and (b) the Additional SERP Benefit multiplied
by a fraction, the numerator of which is the total number of months
(including any fractional month) during which Executive was employed
hereunder less 48 (up to 60), and the denominator of which is 60;
such vested portion of the Additional SERP Benefit to include
hypothetical investment earnings (or losses) beginning April 23,
2005 until paid to Executive, based on the investment performance of
one or more mutual funds selected by Executive, in his sole
discretion;"
(d) Section 9(d)(v) shall be added as follows:
"and (v) to the extent that Executive's termination occurs
after April 23, 2005, any vested portion of the Initial SERP
Benefit, as calculated in accordance with the provisions of Section
5(a) of this Agreement."
(e) The third sentence of Section 9(d) of the Employment Agreement
is deleted in its entirety and is replaced as follows:
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"Executive shall also forfeit (a) any vested or unvested SERP
Benefit, if termination occurs on or prior to Xxxxx 00, 0000, (x)
any vested or unvested Additional SERP Benefit, if termination
occurs after April 23, 2005, and (c) any right to an Annual Bonus
for the calendar year in which Executive's termination occurs."
(f) Sections 9(e)(iv)-(v) of the Employment Agreement are deleted
in their entirety and are replaced as follows:
"(iv) any vested portion of the SERP Benefit, as calculated in
accordance with the provisions of Section 5(a) of this Amendment,
and as adjusted for hypothetical earnings (or losses), and the
immediate accrual and vesting of any unvested portion of the SERP
Benefit that would have been vested and accrued if Executive were
employed through May 1, 2008; (v) the portion of the Restricted
Stock Grant that is free from restrictions as of the date of
termination and the acceleration and immediate release of all
restrictions from all of the shares representing the Restricted
Stock Grants that are subject to restrictions as of the date of
termination and the acceleration and immediate release of all
restrictions from a pro-rata portion of the units of restricted
stock grants under the Company's Performance Accelerated Restricted
Stock Unit Program ("PARSUP") that are subject to restrictions as of
the date of termination (for purposes of this clause, the number of
PARSUP units that shall vest early shall be an amount equal to the
number of unvested PARSUP units on the date of termination
multiplied by a fraction, the numerator of which is total number of
months (including any fractional month) during which Executive was
employed hereunder commencing with February 2003 (up to 60), and the
denominator of which is 60);"
(g) Section 9(f) shall be added to the Employment Agreement as
follows:
"(f) Effect of Expiration of Employment Agreement. Upon the
termination of Executive's employment as a result of the expiration
of the Employment Agreement by its terms on May 1, 2008, and not for
any reason stated in Section 9(a), (b), (c), (d) or (e), Executive
shall be entitled to: (i) accrued but unpaid Base Salary through May
1, 2008; (ii) any bonus amount that has been awarded to Executive by
the Company for the partial year of service ending on May 1, 2008;
(iii) any unpaid portion of an Annual Bonus for prior calendar
years, accrued but unpaid vacation pay, unreimbursed expenses
incurred pursuant to Section 5(b), (c), (f), (g) or (h), and any
other benefits owed to Executive pursuant to any written employee
benefit plan or policy of the Company; (iv) a pro-rata portion of
the SERP Benefit, with the vested portion of the SERP Benefit equal
to the sum of (a) the Initial SERP Benefit, such Initial SERP
Benefit to include hypothetical investment earnings (or losses)
beginning April 23, 2005 until paid to Executive, based on the
investment performance of one
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or more mutual funds selected by Executive, in his sole discretion,
and (b) the Additional SERP Benefit multiplied by a fraction, the
numerator of which is the total number of months (including any
fractional month) during which Executive was employed hereunder less
48 (up to 60), and the denominator of which is 60, such vested
portion of the Additional SERP Benefit to include hypothetical
investment earnings (or losses) beginning April 23, 2005 until paid
to Executive, based on the investment performance of one or more
mutual funds selected by Executive, in his sole discretion; (v) the
immediate release of all restrictions from all Performance
Accelerated Restricted Stock Unit Program ("PARSUP") grants that are
subject to restriction as of May 1, 2008; and (vi) the vested
portion of Executive's Stock Options as of May 1, 2008."
11. Amendment to Section 10 of the Employment Agreement.
(a) Section 10(a)(i) is amended by deleting the following words
beginning in the third line "Xxxxxx X. Xxxxxxx or any member of his immediate
family or any trusts or other entities controlled by Xxxxxx X. Xxxxxxx or any
member of his immediate family," and by deleting the reference to "50%" in the
seventh line and replacing it with "35%."
(b) Section 10(a)(ii) of the Employment Agreement is deleted in
its entirety and replaced with the following.
"(ii) individuals who, as of the date of this Amendment, were
members of the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the members of the Board; provided
that any individual who becomes a director after such date whose
election or nomination for election by the Company's shareholders
was approved by two-thirds of the members of the Incumbent Board
(other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened
"election contest" relating to the election of the directors of the
Company (as such terms are used in Rule 14a-11 under the Securities
Exchange Act of 1934), "tender offer" (as such term is used in
Section 14(d) of the Securities Exchange Act of 1934) or a proposed
transaction described in clause (iii) below) shall be deemed to be
members of the Incumbent Board."
(c) The first sentence of Section 10(b) of the Employment
Agreement is deleted in its entirety and is replaced with the following:
"In the event that within one (1) year following a Change of
Control, the Company terminates Executive Without Cause or Executive
terminates employment for Good Reason, Executive shall be entitled,
in lieu of the compensation and benefits provided pursuant to
Section 9(e), to: (i) the payment of three (3) times Executive's
Base Salary for the year in which such termination shall occur; (ii)
the payment of three (3) times Executive's Annual Bonus for the
preceding year; (iii) any unpaid portion
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of the Base Salary, Signing Bonus or any Annual Bonus for prior
calendar years, accrued and unpaid vacation pay, unreimbursed
expenses incurred pursuant to Section 5(b), (c), (f), (g) or (h),
and any other compensation owed to Executive pursuant to any written
employee benefit plan or policy of the Company; (iv) any vested
portion of the SERP Benefit, as calculated in accordance with the
provisions of Section 5(a) of this Amendment, and the immediate
vesting of any unvested portion of the SERP Benefit; (v) the portion
of the Restricted Stock Grant that is free from restrictions as of
the date of termination and the acceleration and immediate release
of all restrictions from all Restricted Stock Grants or Performance
Accelerated Restricted Stock Unit Program ("PARSUP") grants that are
subject to restrictions as of the date of termination; and (iv) the
vested portion of Executive's Stock Options and the acceleration and
immediate vesting of any unvested portion of Executive's Stock
Options. Executive shall have two (2) years from the date of such
termination Without Cause or by Executive for Good Reason to
exercise all vested Stock Options."
12. Miscellaneous Provisions.
(a) The Employment Agreement is hereby, and shall henceforth be
deemed to be, amended, modified, and supplemented in accordance with the
provisions hereof, and the respective rights, duties, and obligations under the
Employment Agreement shall hereinafter be determined and enforced under the
Employment Agreement, as amended, subject in all respects to such amendments,
modifications, and supplements, and all terms and conditions of this Amendment.
(b) Except as expressly set forth in this Amendment, all
agreements, covenants, undertakings, provisions, stipulations, and promises
contained in the Employment Agreement are hereby ratified, readopted, approved,
and confirmed and remain in full force and effect.
(c) Except as provided by this Amendment, or unless the context or
use indicates another or different meaning or intent, the words and terms used
in this Amendment shall have the same meaning as in the Employment Agreement.
(d) This Amendment may be executed in two or more counterparts,
each of which when so executed, shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
XXXXXXX ENTERTAINMENT COMPANY
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Its: Chairman
EXECUTIVE:
/s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
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EXHIBIT A
SERP BENEFIT VESTING SCHEDULE
(Assuming sample hypothetical investment returns on vested and unvested
benefit, as indicated)
Hypothetical Hypothetical
Vesting Vested Investment Investment Total Vested Total Unvested Total SERP
Accruals Date SERP Accrual Return Income (Loss) SERP Benefit SERP Benefit Benefit
-------- --------- ------------- ------------ ------------- ------------- -------------- -------------
Effective Date 4/23/2001 $ 0.00 $ 2,500,000.00 $2,500,000.00
Initial SERP Benefit (25%) 4/23/2002 $ 625,000.00 0.0000 $ - $ 625,000.00 $ 2,500,000.00 $2,500,000.00
Initial SERP Benefit (25%) 4/23/2003 $ 625,000.00 0.0000 $ - $1,250,000.00 $ 1,875,000.00 $2,500,000.00
Initial SERP Benefit (25%) 4/23/2004 $ 625,000.00 0.0000 $ - $1,875,000.00 $ 1,250,000.00 $2,500,000.00
Initial SERP Benefit (25%) 4/23/2005 $ 625,000.00 0.0000 $ - $2,500,000.00 $ 1,625,000.00 $3,500,000.00
Additional SERP Benefit (20%) 5/1/2006 $ 200,000.00 0.0450 $ 157,500.00 $2,857,500.00 $ 800,000.00 $3,657,500.00
Additional SERP Benefit (20%) 5/1/2007 $ 200,000.00 0.0250 $ 91,437.50 $3,148.937.50 $ 600,000.00 $3,748,937.50
Additional SERP Benefit (20%) 5/1/2008 $ 200,000.00 0.0550 $ 206,191.56 $3,555,129.06 $ 400,000.00 $3,955,129.06
Additional SERP Benefit (20%) 5/1/2009 $ 200,000.00 -0.0250 $ (98,878.23) $3,656,250.84 $ 200,000.00 $3,856,250.84
Additional SERP Benefit (20%) 5/1/2010 $ 200,000.00 0.0450 $ 173,531.29 $4,029,782.12 $ - $4,029,782.12
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$3,500,000.00 $ 529,782.12
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