Exhibit 10.11
AMENDMENT NUMBER ONE
(to Employment Agreement dated December 14, 1998)
THIS AGREEMENT, made this _________ day of ________________, 2001, is
between Better Materials Corporation, a Pennsylvania corporation (hereinafter
"Company"), and Xxxxx X. Xxxxxxx (hereinafter "Executive").
WHEREAS, the Company and the Executive are parties to an Employment
Agreement dated December 14, 1998, which expires on December 14, 2000; and,
WHEREAS, the Company and the Executive desire to extend the Term of
Employment of the Executive and change some of the other terms of the Employment
Agreement;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. The Employment Agreement between the parties dated
December 14, 1998, attached as Exhibit "A" (hereinafter
"Agreement"), as amended by this Amendment Number One, is ratified
and confirmed and shall remain in effect.
2. The last sentence of Paragraph 1 of the Agreement is amended to
read as follows:
The Executive shall not be required to have his primary place
of employment more than 50 miles from his current place of
employment.
3. Paragraph 2 of the Agreement is amended to read as follows:
Term of Employment. The employment hereunder shall be for a term
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of two years beginning on December 14, 2000 and ending on the
second anniversary thereof (the "Expiration Date"), unless earlier
terminated pursuant to Paragraph 4 of this Agreement (the "Term of
Employment").
4. Paragraphs 3(a), (b) and (d) of the Agreement are amended to read
as follows:
(a) Salary. As compensation for services rendered hereunder, the
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Executive shall receive in the calendar year 2001 a minimum
Annual Salary of One Hundred Ninety Five Thousand Dollars
($195,000.00), which salary shall be paid in accordance with
the Company's then prevailing payroll practices. The
Executive shall be eligible for merit increases in the
Annual Salary in accordance with the practice applicable to
other USSH senior executives.
(b) Restricted Stock. If (i) the Executive is terminated without
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cause pursuant to paragraph 4(d) of this Employment
Agreement, or (ii) the Company and the Executive fail to
enter into a new agreement with respect to the employment of
the Executive within ninety days after the Expiration Date,
and the Company or the Executive terminate the Executive's
employment with the Company, then, for purposes of the
Manager Repurchase Agreement dated as of March 17, 1999 (the
"Repurchase Agreement")
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between USS Holdings, Inc. and the Executive, a Termination
Event (as defined in the Stockholders Agreement dated
October 6, 1998) shall be deemed to occur not sooner than
December 14, 2001, which is the third anniversary of the
date of the Executive's initial employment with a Subsidiary
of the Corporation (as defined in the Repurchase Agreement).
(d) Other Benefits. The fringe benefits, perquisites and other
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benefits of employment to be provided to the Executive shall
be equivalent to such benefits and perquisites as are
provided to other senior executives of USSH as amended from
time to time. The Executive shall be entitled to a company
automobile, which the Executive shall use for business
purposes only. The Executive shall be entitled to live at
the residence at Chippewa Farms owned by the Company rent
free during the term of this Agreement, provided, however,
that the rental value of residing in the residence rent free
realized by the Executive shall be imputed to the Executive
as income.
5. Paragraph 4(a) of the Agreement is amended to read as follows:
(a) Disability. If, as a result of the incapacity of the
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Executive due to physical or mental illness, the Executive
is unable to perform substantially and continuously the
duties assigned to him hereunder, with or without reasonable
accommodation, for a period of five (5) consecutive months
or for a non-consecutive period of nine (9) months during
the Term of Employment, the Company may terminate his
employment for "Disability" upon thirty (30) days prior
written notice to the Executive.
6. Paragraphs 6 (c) and (d) of the Agreement are amended to read as
follows:
(c) Non-competition. The Executive agrees that, during the term
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of Employment and for a period of two (2) years following
the date of termination of the Executive's employment with
the Company for any reason, the Executive will not, directly
or indirectly, own, manage, operate, control or participate
in the ownership, management or control of, or be connected
as an officer, employee, partner, director, or otherwise
with, or have any financial interest in, or aid or assist
anyone else in the conduct of, any entity or business that
competes with any business conducted by the Company or any
of its subsidiaries or affiliates, in any area where such
business is being conducted on the date of the Executive's
employment is terminated hereunder and as to which the
Executive has material responsibilities.
(d) Further Covenant. Until the date which is two (2) years
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after the date of the termination of the Executive's
employment hereunder for any reason, the Executive will not,
directly or indirectly, take any of the following actions,
and, to the extent the Executive owns, manages, operates,
controls, is employed by or participates in the ownership,
management,
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operation or control of, or is connected in any manner with,
any business of the type and character engaged in and
competitive with that conducted by the Company or way of the
Affiliates during the period of the Executive's employment,
the Executive will use his best efforts to ensure that such
business does not take any of the following actions:
(i) persuade or attempt to persuade any client of the
Company to cease doing business with the Company or
any Affiliate, or to reduce the amount of business
it does with the Company or any Affiliate;
(ii) solicit for himself or any entity the business of a
client of the Company or any Affiliate, or solicit
any business which was a client of the Company or
any Affiliate within six months prior to the
termination of the Executive's employment;
(iii) persuade or attempt to persuade any employee of the
company or any Affiliate or any individual who was
its employee of the Company or any Affiliate during
the two (2) years prior to the Executive's
termination of employment, to leave the employ of
the Company or any of its subsidiaries or
affiliates.
7. Except as amended in the above paragraphs, all of the terms of
the December 14, 1998 agreement shall remain in effect.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Amendment No. One as of the date first written above.
XXXXX X. XXXXXXX BETTER MATERIALS CORPORATION
________________________________ By: _____________________________
Name:
Title:
