EXHIBIT 10.21
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
OF
XXXXXXX X. XXXXXXX
This Amendment is made this 28 day of September, 1999, by and between Mackie
Designs, Inc. ("Mackie"), a Washington corporation, and Xxxxxxx X. Xxxxxxx
("Employee").
RECITALS
X. Xxxxxx and Employee executed an Employment Agreement of May 19, 1997
("Agreement"), which Agreement was amended in September, 1999.
B. The parties wish to amend the Agreement to provide for an update of the base
salary due to Employee during the term of the Agreement, to clarify the bases
for termination and the effects thereof, and to provide certain additional
protections for Mackie.
Based upon the above recitals, the parties promise and agree as follows:
1. DUTIES. Section 2.1 of the Agreement is amended to read in its entirety as
follows:
2.1 DUTIES. Employee shall serve as Vice President and Chief Financial
Officer ("CFO"), with principal responsibility for overseeing Mackie's
accounting, finances and treasury. Employee shall have such other and
further responsibilities, duties and goals as are established for him
from time to time by Mackie's Chairman of the Board, Chief Executive
Officer or Board of Directors ("Board"). Employee shall report directly
to Mackie's Chairman of the Board, Chief Executive Officer, and, upon
request, to the Board.
2. BASE SALARY. Section 3.1.1 of the Agreement is amended to read in its
entirety as follows:
3.1.1 A base salary of $165,000 per year, payable at such times and in
such increments as are consistent with Mackie's usual policies. Any
proposed annual salary increase and any salary decrease will be
determined by the Board; provided that Employee's salary shall never be
less than that set forth above; and,
3. TERMINATION. Section 5.1.1 of the Agreement shall be amended to read in its
entirety as follows:
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5.1 TERMINATION. This Agreement, and Employee's employment with Mackie,
shall be terminated upon the occurrence of any one of the following
events:
5.1.1 The conviction of Employee for any crime which is a
felony under applicable law;
5.1.2 The dishonesty of Employee in the performance of his
duties or in his reporting to the management of Mackie;
5.1.3 At the option of Mackie if any one of the following
conditions occurs and persists after Mackie has given Employee
prior written notice of intent to terminate his employment
with specific reasons therefor, and Employee fails to correct
the specified problems within a period of 30 days of the
effective date of the notice:
(A) Chronic alcoholism, drug abuse, or addiction;
(B) Failure of Employee to apply his full-time
attention and best efforts to the business of Mackie;
(C) Failure of Employee to perform consistently the
duties assigned to him by Mackie;
(D) Failure of Employee to handle his work or
assignments in accordance with the policies of
Mackie, reasonably stated; or,
(E) Breach by Employee of any of the terms and
conditions of this Agreement.
5.1.4 The death of Employee;
5.1.5 At the option of Employee in the event of the
insolvency of Mackie;
5.1.6 At the option of Employee upon giving 90 days prior
written notice;
5.1.7 At the option of Mackie upon giving written notice of
termination.
4. EFFECTS OF CERTAIN TYPES OF TERMINATION. Section 5.2.2 is amended to read in
its entirety as follows:
5.2.2 If the termination is for any other reason than that set
forth in Sections 5.1.4 or 5.1.7, Employee shall (i) have no
rights to compensation or reimbursement for salary or bonus
for any period subsequent to the date of such termination,
(ii) have no right to participate in any employee benefit
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programs under Section 4 for any period subsequent to the date
of such termination; PROVIDED that Mackie will remain
obligated to meet any obligations that it may have under
COBRA, and (iii) have no right to any bonus that would have
been payable on a date subsequent to Employee's termination
date.
5. NONSOLICITATION OF EMPLOYEES FOLLOWING TERMINATION. A new Section 8 is added
to the Agreement to read as follows, with all subsequent sections renumbered to
accommodate the new section:
8. NONSOLICITATION OF EMPLOYEES. During the first year following the
termination of Employee's employment, Employee shall not, for any
reason whatsoever, solicit any employee of Mackie to leave his or her
employment with Mackie. Violation of this Section shall cause damage to
Mackie, which damage shall be difficult of proof and ascertainment.
Consequently, and in addition to Mackie's right to seek specific
performance of this Section, Employee shall pay to Mackie the sum of
$10,000 for each employee of Mackie that Employee solicits for
employment and who elects to leave Mackie, which sum shall represent
liquidated damages for such solicitation and not a penalty. The
obligations contained in this Section shall survive the termination of
this Agreement.
6. SURVIVAL OF CERTAIN RIGHTS. A new Section 11.9 is added to the Agreement to
read in its entirety as follows:
11.9 The provisions of Sections 5, 6, 7, 8, and 9, shall survive the
termination of this Agreement.
7. RATIFICATION. Except as amended herein, the Agreement is hereby ratified and
confirmed as written.
8. WASHINGTON LAW. This Amendment shall be construed in accordance with the laws
of the State of Washington.
9. BINDING EFFECT. This Amendment shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, personal representatives,
successors and/or assigns.
Dated the day and year first above written.
MACKIE DESIGNS INC.
By: /s/ Xxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Title: CEO, President Xxxxxxx X. Xxxxxxx
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