EXHIBIT 10.12
AMENDMENT TO AGREEMENT
WHEREAS, W. P. Xxxxx International LLC ("WPCI"), W. P. Xxxxx & Co. LLC
("WPC LLC" and collectively with WPCI, its subsidiary, the "Companies") and
Xxxxxx X. XxXxxx, an employee of the Companies (the "Partner"), have previously
entered into agreements regarding Partner's employment dated as of June 28, 2000
(the "2000 Employment Agreement") and March 21, 2003 (the "2003 Amended
Employment Agreement") (collectively, the "Employment Agreements"), each of
which currently remains in effect; and
WHEREAS, the parties desire to further amend the Employment Agreements in a
manner which reflects the parties' best efforts to comply with the provisions of
Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), for
the benefit of the Partner;
NOW THEREFORE, the Companies and the Partner, for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound hereby, agree as follows:
I. The 2003 Amended Employment Agreement shall be further amended as
follows:
1. Section 2(a) of the 2003 Amended Employment Agreement shall be
amended and restated in its entirety to read as follows:
Partner shall serve the Company as Managing Director and Chief
Acquisitions Officer. It is the intention of the Company that Partner will
one day succeed the current Chairman and Chief Executive Officer of the
Company. In the event that Partner does not succeed the current Chairman
and Chief Executive Officer prior to his separation from service for any
reason other than by determination by a majority of the then members of the
WPCI Board of Directors, as hereinafter defined, that Partner has displayed
willful gross negligence, dishonesty, or gross incompetence while carrying
out his duties for the Company, then, upon a separation from service from
the Company and W. P. Xxxxx & Co., LLC, Partner will be entitled to an
award of $1,000,000. Such an award will also be payable (i) should (a)
(prior to any determination by the WPCI Board of Directors pursuant to the
preceding sentence) any individual, with the exception of Xxxxxxx Xxxx
Xxxxx or Xxxxxxx X. Xxxxx, be allowed to hold a position senior to Partner,
or (b) operations of the Company be materially different than as described
in the Terms of Relationship (as attached as Exhibit B); and (ii) Partner
separates from service from the Company and W. P. Xxxxx & Co. LLC at any
time on or after the occurrence of an event described in clause (i) of this
sentence. Amounts payable under this Section shall be paid within 30 days
of the Partner's separation from service; provided, however, if Partner is
a specified employee within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended, (the "Code"), amounts payable pursuant to
this Section shall be paid on the first business day following the six (6)
month anniversary of the Partner's separation from service. Amounts payable
under this Section shall be paid with interest for the period beginning on
the date of Partner's separation from service and ending on the date such
amount is paid, at a rate equal to the one-year Treasury xxxx rate as
quoted in The Wall Street Journal (or in such other reliable publication as
the Executive Committee, in its reasonable discretion, may determine to
rely upon).
2. The first and second sentences of Section 4 of the 2003 Amended
Employment Agreement shall be amended and restated in their entirety to read as
follows:
During the Service Period, Partner shall receive cash compensation in
the form of an annual Base Salary at the rate of $300,000, which shall be
payable on the
regularly-scheduled date(s) provided in the Company's standard payroll
procedures, with any additional compensation to be deemed Incentive
Compensation (Base Salary and Incentive Compensation, together, constitute
"Total Annual Compensation"). During the Service Period, Partner will
receive an additional $200,000, which will be treated as a draw and will be
payable in accordance with the Company's normal payroll practices, which
draw shall offset any Incentive Compensation, commissions, or override
payable to the Partner, subject to approval in the sole discretion of the
Company, and limited to the amount of Incentive Compensation which is, by
its terms, payable within two and one-half months of the end of the year in
which (i) it is vested and (ii) otherwise subject to the draw, and does not
otherwise constitute nonqualified deferred compensation within the meaning
of Section 409A of the Code.
II. The 2000 Employment Agreement shall be further amended as follows:
1. Section 6(a) of the 2000 Employment Agreement shall be amended to
add the following new paragraph at the end thereof as follows:
The perquisites and expense reimbursements provided in this Section
6(a) shall be payable on the date(s) provided in the Company's standard
payroll and reimbursement procedures with respect to such perquisites and
expense reimbursements. Notwithstanding the foregoing sentence, to the
extent reimbursed, all reimbursement payments with respect to expenses
incurred within a particular year shall be made no later than the end of
the Partner's taxable year following the taxable year in which the expense
was incurred. The amount of reimbursable expenses incurred in one taxable
year of the Partner shall not affect the amount of reimbursable expenses in
a different taxable year, and such reimbursement shall not be subject to
liquidation or exchange for another benefit.
2. The first five sentences of Section 6(b) of the 2000 Employment
Agreement shall be amended and restated in their entirety to read as
follows:
During the term hereof, the Company shall reimburse Partner for the
annual costs of individual life insurance coverage under a policy owned by
Partner (or, at Partner's election, a trust established by Partner for the
benefit of his beneficiaries) and pay for individual disability coverage
for the Partner, up to a maximum annual amount for both life and disability
insurance of $15,000 for each taxable year of the Partner; the
reimbursement of life insurance premiums becoming due in each taxable year
of Partner shall be made in accordance with the generally applicable
policies and procedures of the Company for the period beginning upon the
Commencement Date and ending upon the termination of the Agreement.
Reimbursement of such costs shall be made in due course in accordance with
the Company's standard practices, and all reimbursement payments with
respect to reimbursement obligations incurred within a particular year
shall be made no later than the end of the Partner's taxable year following
the taxable year in which the reimbursement obligation was incurred.
Pursuant to and subject to the first sentence hereof (including the amount
specified therein): Unless Partner otherwise requests to obtain different
coverage, as soon as reasonably practicable after the execution hereof, the
Company shall (i) put in place individual life insurance coverage on
Partner's life in the fact amount of $4,000,000 and shall continue such
coverage in place during the Service Period (subject to Partner's being
insurable) and (ii) pay the costs of such coverage, and Partner shall be
the sole owner of any life insurance policy acquired (including the cash
value thereof) without any assignment to the Company of any interest in
such policy, and Partner shall have the right to designate the beneficiary
or beneficiaries thereof. Partner shall be fully taxable for the
reimbursements provided under this paragraph. Subject to, and pursuant to,
the first sentence of this Section 6(b) (including the amount specified
therein), unless Partner otherwise requests, as soon as reasonably
practicable after the execution hereof, the Company shall assist Partner to
obtain an individual disability benefits policy providing replacement
income upon disability (in addition to any coverage otherwise available
under the Company's generally applicable group coverage) of up to, but not
exceeding, $10,000 in benefits per month. Notwithstanding
-2-
the foregoing, Partner's entitlement to a reimbursement of the costs of
insurance for a taxable year pursuant to this Section 6(b) shall have no
effect on Partner's entitlement to a reimbursement of such costs in any
prior or subsequent taxable year, and shall not be subject to liquidation
or exchange for another benefit.
3. Section 6(c) of the 2000 Employment Agreement shall be amended and
restated in its entirety as follows:
The Company agrees to reimburse all reasonable expenses incurred or
paid by Partner in the performance of Partner's duties hereunder, upon
presentation of expense statements or vouchers and such other information
as the Company may require and in accordance with the generally applicable
policies and procedures of the Company for the period beginning upon the
Commencement Date and ending upon the termination of the Agreement. Such
expenses shall be reimbursed in due course in accordance with the Company's
standard practices, and all reimbursement payments with respect to expenses
incurred within a particular year shall be made no later than the end of
the Partner's taxable year following the taxable year in which the expense
was incurred. The amount of reimbursable expenses incurred in one taxable
year of the Partner shall not affect the amount of reimbursable expenses in
a different taxable year and such reimbursement shall not be subject to
liquidation or exchange for another benefit. Notwithstanding the foregoing,
in the event such amounts are conditioned upon a separation from service
and not compensation the Partnership could receive without separating from
service, then such payments shall be made to Partner on the first business
day following the six (6) month anniversary of the date of separation from
service.
4. The "Equity Acceleration" column under Section 7(b) of the 2000
Employment Agreement shall be amended by replacing the term "Payable" with
"Accelerated" and the term "Not Payable" with "Not Accelerated" in every
instance in which they appear in such column.
5. Section 7(c) of the 2000 Employment Agreement shall be amended and
restated in its entirety to read as follows:
Earned Total Compensation shall be paid in a single lump sum as
soon as practicable, but in no event more than 30 days following end of the
Service Period except that, if the Company exercises its discretion to pay
Partner any additional Incentive Compensation in respect of his service for
the period prior to the Partner's termination of services, such amount
shall be payable at the same time as such amounts would otherwise be
payable under the Company's usual practices; provided further that any such
Incentive Compensation shall be made on or before the fifteenth day of the
third month following the end of the Company's taxable year in which the
right to the bonus vests. Accrued Employee Benefits shall be payable in
accordance with the terms of the plan, policy, practice, program, contract,
or agreement under which such benefits have accrued. Severance Benefits, if
applicable, shall be paid on the same regularly scheduled payroll dates as
Partner would have received his Base Salary had he continued to be employed
and for the period ending on the first to occur of (i) the first
anniversary of Partner's termination of employment and (ii) the date on
which Partner breaches any of the provisions of Paragraph 8; provided,
however, that if the Partner is a specified employee within the meaning of
Section 409A of the Code, the taxable amounts payable by the Company to the
Partner pursuant to Section 7 and other Company separation pay plan
amounts, including bonus and other amounts that are conditioned upon a
separation from service and not compensation the Partner could receive
without separating from service, and that otherwise constitutes
"nonqualified deferred compensation" under Section 409A of the Code, shall
be paid on the first business day following the six (6) month anniversary
of the Partner's separation from service, on which date they shall be paid
with interest for such period at a rate equal to the one-year Treasury xxxx
rate as quoted in The Wall Street Journal (or in such other reliable
publication as the
-3-
Executive Committee, in its reasonable discretion, may determine to rely
upon) from the date of Partner's separation from service.
III. Miscellaneous Provisions:
1. The following new Section shall be added to the end of each
Employment Agreement as follows:
409A Compliance. This Agreement is intended to comply with the
requirements of Section 409A of the Code, including good faith, reasonable
statutory interpretations of Section 409A that are contrary to the terms of
the Agreement, if any, without diminution of value to Partner. Consistent
with that intent, this Agreement shall be interpreted in a manner
consistent with Section 409A. In the event that any provision that is
necessary for the Agreement to comply with Section 409A is determined by
the Company, with the consent of the Partner, to have been omitted, such
omitted provision shall be deemed to be included herein and is hereby
incorporated as part of the Agreement.
2. Any "separation from service" within the Employment Agreements
shall mean a separation from service from both WPCI and WPC LLC and shall be
construed consistent with Section 409A of the Code and the regulations
thereunder. The term "termination" and "end of the Service Period", when used
within the Employment Agreements in the context of a condition to, or timing of,
payment shall be interpreted to mean a "separation from service" from both WPCI
and WPC LLC, as that term is used in Section 409A of the Code.
3. Except as provided in this amendment, the Employment Agreements
are, in all other respects, unchanged and are and shall continue to be in full
force and effect, and are hereby in all respects ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this amendment, in duplicate,
on the dates set forth below.
W. P. Xxxxx International LLC
By: /s/ Xxxxxx X. Xxxxxxxxx 12/31/08
------------------------- -----------
Name: Xxxxxx X. Xxxxxxxxx Date Signed
Title: Vice President
W. P. Xxxxx & Co. LLC
By: /s/ Xxxxxx X. Xxxxxxxxx 12/31/08
------------------------- -----------
Name: Xxxxxx X. Xxxxxxxxx Date Signed
Title: Vice President
Partner
/s/ Xxxxxx X. XxXxxx 12/31/08
----------------------------- -----------
Xxxxxx X. XxXxxx Date Signed
-4-
