Exhibit 10.2
SECOND AMENDMENT
SECOND AMENDMENT (this "Second Amendment") effective as of January 31,
2003, between Xxxxxx Corporation, a Delaware Corporation (the "Corporation") and
Xxxxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Corporation and the Employee entered into to an employment
agreement dated March 13, 2000 and amended pursuant to a letter agreement dated
July 27, 2001 (collectively, the "Employment Agreement");
WHEREAS, the Corporation and the Employee entered into a letter agreement
relating to a stay bonus and certain other terms of employment dated December 5,
2002 (the "December Letter") which were intended to supplement the terms of the
Employment Agreement;
WHEREAS, the Corporation and the Employee desire clarify the terms set
forth in the December Letter and incorporate the terms thereof into the
Employment Agreement by entering into this Second Amendment.
NOW THEREFORE, in consideration of the respective premises, mutual
covenants and agreements of the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. The Employment Agreement is hereby amended as follows:
(a) Section 6(d) is hereby amended to revise Section 6(d)(vi) to read as
follows:
"(vi) until the end of the Severance Period, continued participation
in all medical, dental, health and life insurance plans and in other
employee benefit plans or programs at the same benefit level at which
the Employee was participating on the Termination Date, provided that
if the Employee is precluded from continuing his participation in any
such benefit plan or program as a matter of law, or in the case of
life insurance, as a result of the requirements of such benefit plan
or program, the Corporation shall have no obligation to continue to
provide such benefits."
(b) Section 6(d) is hereby amended to add Sections 6(d)(vii) and
6(d)(viii) to read as follows:
"(vii) other or additional benefits then due or earned in accordance
with applicable plans and programs of the Corporation, payable in a
lump sum upon the Termination Date to the extent practicable.
(viii) the Stay Bonus (as hereinafter defined) and Enhanced Severance
Payment (as hereinafter defined), payable in accordance with Section
6(h) if such
termination occurs on or after a Change of Control, but on or prior to
the six-month anniversary of the occurrence of the Change of Control."
(c) Section 6(e) of the Employment Agreement is deleted and replaced in
its entirety by the following:
"(e) Termination by the Employee for Good Reason. The Employee shall
have the right to terminate his employment for Good Reason (as
hereinafter defined), provided that the Employee shall have given the
Corporation ninety (90) days prior written notice of the Employee's
decision to terminate his employment (specifying the alleged "Good
Reason" in reasonable detail) and, if it is possible to cure, the
Corporation shall not have cured the same within thirty (30) thirty
days after receipt of such notice, or, if cure cannot be fully
accomplished within thirty (30) days, the Corporation shall not have
commenced cure within thirty (30) days after receipt of such notice or
cured the alleged "Good Reason" as soon as possible thereafter.
Notwithstanding the foregoing, if the event giving rise to "Good
Reason" is the event described at Section 6(e)(vii), below, the
Employee shall be entitled to terminate his employment for Good Reason
immediately upon written notice to the Corporation.
"Good Reason" shall mean (i) the assignment to the Employee of duties
materially and adversely inconsistent with the Employee's positions,
titles, offices, duties, responsibilities or status with the
Corporation, (ii) a change in the Employee's reporting
responsibilities; (iii) any removal of the Employee from, or any
failure to re-elect the Employee to, any positions, titles or offices
specified in the Employment Agreement and held by the Employee, (iv) a
reduction in the Employee's Salary, (v) a material reduction in the
Employee's benefits or perquisites (other than a reduction pursuant to
the last sentence of Section 3 hereof); (vi) a requirement that
Employee change his place of principal employment to a location other
than a location within the metropolitan New York area; or (vii)
failure of the Corporation (or any successor thereto) to offer the
Employee continued employment immediately following a Change of
Control on terms at least as favorable as the New Terms (as defined
below).
"New Terms" shall mean terms that are substantially similar to the
terms of the Employment Agreement, modified to provide that: (1)
Employee shall be promoted to and have the title of President of the
Xxxxx Xxxxx division and the Xxxxx Xxxxx Brand division of the
Corporation (or any successor thereto) and shall report directly to
the Chief Executive Officer of the Corporation (or any successor
thereto) or the Board of Directors of the Corporation (or its
successor) if no Chief Executive Officer is named; (2) the Employee
shall perform such duties as are consistent with the title and
position of President of the Xxxxx Xxxxx division and the Xxxxx Xxxxx
Brand division, including, without limitation, responsibility for all
aspects of marketing, merchandising, design and licensing of all Xxxxx
Xxxxx products, with further responsibilities subject to negotiations
with the Corporation (or any successor thereto); (3) the term of
employment shall be a fixed term of
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two (2) years (commencing on the Change of Control), with a
requirement that the Corporation (or any successor) provide the
Employee with at least six (6) months notice of any early termination
of or intention not to extend the employment term, (4) salary shall
not be less than the Salary immediately in effect prior to the
occurrence of the Change of Control; (5) benefits shall not be less
than the benefits in effect immediately prior to the Change of Control
(including, without limitation, the Employee's Incentive Compensation
(as set forth in Section 2(b) of the Employment Agreement and Exhibit
A attached hereto)); (6) that, only in respect of the year in which
the Change of Control occurs, the Employee shall receive (in lieu of
the Employee's Incentive Compensation for such year) a guaranteed
bonus equal to at least fifty percent (50%) of the Employee's
annualized salary then in effect (the "Guaranteed Bonus") payable no
later than March 31, 2004; (7) in the event the Employee's employment
is terminated by the Corporation (or its successor) without Cause or
by the Employee for Good Reason, a lump sum cash payment (payable
within ten (10) days of termination) in an amount equal to salary
payable to the Employee for a period that is the longer of (x) twelve
(12) months or (y) the remainder of the term of employment, plus the
Employee's Guaranteed Bonus (without pro-ration) in the event such
termination occurs on or prior to the payment of such Guaranteed Bonus
and a pro-rated Bonus (pro-rated through the date of such termination)
if such termination occurs in any year in respect of which the
Guaranteed Bonus is not payable, with all of the foregoing payments
made in lump sum within ten (10) days of the date of such termination;
(8) a provision whereby the "non-compete clause" in the Employment
Agreement is deleted if the Employee remains in the active employ of
the Corporation for a period of six-months following a Change of
Control, and (9) the obligation to pay the Enhanced Severance Payment
shall be deleted.
In the event that Employee's employment is terminated by the Employee
for Good Reason, the Employee shall be entitled to, and his sole
remedies shall be, the same benefits provided for in Section 6(d)
hereof."
(d) Section 6(h) is hereby added to the Employment Agreement to read as
follows:
"(h) Change of Control Payments. Notwithstanding any provision to the
contrary, the Employee shall be entitled to the following upon the
occurrence of a Change of Control:
(i) Stay Bonus. The Employee shall be entitled to receive a lump
sum cash payment in an amount equal to the annualized rate
of his then current salary (the "Stay Bonus") upon the
earliest to occur of:
(A) the six-month anniversary of the occurence of the
Change of Control (the "Six-Month Anniversary") if the
Employee is in the employ of the Corporation on such
date, in which
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case the Stay Bonus shall be payable on the Six-Month
Anniversary;
(B) a termination by the Corporation (or any successor thereto)
without Cause (pursuant to Section 6(d) of the Employment
Agreement) on or after the occurrence of the Change of
Control but on or prior to the Six-Month Anniversary, in
which case the Stay Bonus shall be payable within ten (10)
days of such termination of employment; or
(C) a termination by the Employee for Good Reason (pursuant to
Section 6(e) of the Employment Agreement) on or after the
occurrence of the Change of Control but on or prior to the
Six-Month Anniversary, in which case the Stay Bonus shall
be payable within ten (10) days of such termination of
employment.
(ii) Enhanced Severance Payment. The Employee shall be entitled to
receive a lump sum cash payment in an amount equal to fifty
percent (50%) of his severance entitlement under the Employment
Agreement (the result of which is the sum of (x) three (3)
months of his then current salary and (y) two weeks of his then
current salary (which is 50% of the amount payable as of the
date hereof in accordance with the Corporation's standard
severance policy based upon eight (8) years of service as of the
date hereof)) (the "Enhanced Severance Payment") in the event
the Employee's employment is terminated on or after the Change
of Control but on or prior to the Six-Month Anniversary (x) by
the Corporation (or any successor thereto) without Cause
(pursuant to Section 6(d) of the Employment Agreement); or (y)
by the Employee for Good Reason (pursuant to Section 6(e) of the
Employment Agreement).
(iii) For avoidance of doubt, each of the Stay Bonus and the Enhanced
Severance Payment shall not be payable in the event the
Employee's employment is terminated (A) by the Corporation for
Cause, (B) by the Employee voluntarily without Good Reason, or
(C) on account of Employee's death or Disability. In addition,
the Enhanced Severance Payment shall not be payable if the
Employee accepts continued employment following the Change of
Control on the New Terms. The Stay Bonus and Enhanced Severance
Payment payable pursuant to this Section 6(h) shall be payable
in addition to (and not in lieu of) any other benefits which may
be provided under the Employment Agreement (including, without
limitation, the continuation of salary and benefits provided
pursuant to Section 6(d) and 6(e) of the Employment Agreement).
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(iv) "Change of Control" shall mean an event or series of events by
which (i) any person (or entity) is or becomes the "beneficial
owner" (as defined in rules 13d-3 and 13d-5 under the Securities
and Exchange Act of 1934, as amended, except that a person shall
be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is
exercisable immediately or after the passage of time), directly
or indirectly, of a majority of the then outstanding voting stock
of the Corporation; (ii) the Corporation consolidates with or
merges into another entity or any entity consolidates with or
merges into the Corporation, in either event pursuant to a
transaction in which then outstanding voting stock of the
Corporation is changed into or exchanged for cash, securities or
other properties, other than any such transaction where the
holders of the voting stock of the Corporation immediately before
such transaction, own, immediately after such transaction, voting
stock of such surviving entity entitling them to more than fifty
(50%) percent of the aggregate voting power of all voting stock
of such surviving entity; or (iii) the Corporation conveys,
transfers or leases all or substantially all of its assets to any
person or entity.
Section 2. Except as specifically amended above, the Employment Agreement and
all provisions thereof shall remain in full force and effect and are hereby
ratified and confirmed.
Section 3. Upon the effective date of this Second Amendment, on and after the
date hereof, each reference in the Employment Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference to
the Employment Agreement in any document relating to the Employment Agreement,
shall mean and be a reference to the Employment Agreement as amended hereby.
Section 4. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
Section 5. Capitalized terms used herein and not otherwise defined herein shall
have the meanings specified, or ascribed thereto by reference, in the Employment
Agreement.
Section 6. This Second Amendment replaces in its entirety, the December Letter
which upon the effective date of this Second Amendment shall become null and
void and of no further force and effect.
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IN WITNESS THEREOF, the parties have executed this Second Amendment as of
__________ ____, 2003.
XXXXXX CORPORATION
______________________________________
By: Xxxxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
________________________________________
XXXXXXX X. XXXXXX
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