EXHIBIT 10.8
AMENDMENT TO
CONTINUITY AGREEMENT
THIS FIRST AMENDMENT TO CONTINUITY AGREEMENT (this "Amendment"), is made
as of March 14, 2005, by and between XXXXXXX INCORPORATED, a Connecticut
corporation (the "Company"), and Xxxx X. Xxxxx ("Executive"). Capitalized terms
used and not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement (as defined below).
WHEREAS, as of December 27, 1999, the Company entered into the Continuity
Agreement with Executive (the "Agreement"); and
WHEREAS, pursuant to Section 13 of the Agreement, the Agreement may be amended
by a writing signed by Executive and an officer of the Company specifically
designated by the Board of Directors of the Company (the "Board") or the
Compensation Committee of the Board; and
WHEREAS, the Company and Executive desire to amend the Agreement as set forth
herein, to clarify such intent.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby amend the Agreement as
follows:
1. Section 3(e)(iv) of the Agreement is hereby amended and restated in its
entirety as follows:
"(iv) any relocation of the Executive's primary workplace to a
location that is more than 35 miles from the Executive's primary workplace
as of the date immediately prior to the Change in Control Transaction;
or".
2. Section 4(b)(ii) of the Agreement is hereby amended and restated in its
entirety as follows:
"(ii) an annual benefit under the Company's Amended and Restated
Supplemental Executive Retirement Plan (the `SERP'), calculated based on 8
1/3 years of service and unreduced for early retirement thereunder;
provided, however, that this provision does not entitle the Executive, if
he did not previously participate in the SERP, to participate in the SERP
absent the occurrence of the contemplated Change in Control; and provided,
further, that the Executive's benefit pursuant to this Section 4(b)(ii),
if payable, shall be in lieu of any amount payable to him pursuant to the
Company's Top Hat Restoration Plan; and".
3. Section 4(b)(iv) of the Agreement is hereby deleted in its entirety:
4. Section 4(b)(v) of the Agreement is hereby renumbered Section 4(b)(iv).
5. Section 6(c) of the Agreement is hereby amended and restated in its
entirety as follows:
"(c) The Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim; provided, however, that if the
Executive is required to extend the statute of limitations to enable the
Company to contest such claim, the Executive may limit this extension
solely to such contested amount. The Company's control of the contest
shall be limited to issues with respect to which a corporate deduction
would be disallowed pursuant to Section 280G of the Code and the Executive
shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing
authority. In addition, no position may be taken nor any final resolution
be agreed to by the Company without the Executive's consent if such
position or resolution could reasonably be expected to adversely affect
the Executive (including any other tax position of the Executive unrelated
to matters covered hereby)."
6. This Amendment shall be and is hereby incorporated in and forms a part
of the Agreement.
7. This Amendment shall be effective as of the date first written above.
8. Except as set forth herein, the Agreement shall remain in full force
and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and Executive have executed this
Amendment, to be effective as of the day and year first written above.
EXECUTIVE Xxxxxxx Incorporated
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- ----------------------
Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Vice President, General
Counsel and Secretary
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