EXHIBIT 10.1
------------
AMENDMENT TO
EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT dated May 2, 2006 between R.
Xxxxx Xxxxx (the "Executive") and Xxxxxxxx, Inc., a Delaware corporation
(the "Company").
WHEREAS, the Executive and the Company are parties to an Employment
Agreement dated as of February 29, 1996 (the "Employment Agreement"); and
WHEREAS, the Company and the Executive desire to enter into this
Amendment to Employment Agreement to revise the terms of the Employment
Agreement in certain respects.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. Section 1(b) of the Employment Agreement is amended in its
entirety, effective as of April 1, 2006, to read as follows:
(b) TERM. The term of this Agreement (the "Term") shall
commence as of April 1, 2006 (the "Effective Date") and shall continue
until April 1, 2008, and indefinitely thereafter until terminated pursuant
to Section 4 hereof. As used herein, the term "Employment Period" shall
mean the period commencing on the Effective Date and ending on the date of
termination of the term hereof or Executive's employment with the Company
pursuant to Section 4 hereof.
2. A new Section 3(g) is added to the Employment Agreement,
effective as of April 1, 2006, providing as follows:
(g) RESTRICTED STOCK. On the Effective Date, as has been
approved by the Compensation Committee of the Board, the Executive shall be
granted 1,000 shares of restricted Common Stock (the "Restricted Stock").
The shares of Restricted Stock shall become vested on the third anniversary
of the Effective Date. The Restricted Stock shall be subject to the terms
and provisions of the Company's 2005 Long-Term Incentive Plan.
3. Section 4(d) of the Employment Agreement is amended, effective
as of April 1, 2006, to provide that, if the Company terminates the
employment of the Executive for any reason other than a reason set forth in
Section 4(a), 4(b) or 4(c) of the Employment Agreement during the
Employment Period and prior to April 1, 2008, the amount to be paid to the
Executive under Section 4(d)(ii) of the Employment Agreement shall be as
follows:
(ii) the Company shall continue to pay the Executive his Base
Salary, Bonus (based on the same percentage of Base Salary as the average
annual Bonuses paid to the Executive for the three fiscal years of the
Company preceding such termination of employment) and all other benefits
which would otherwise be payable hereunder for a period of twenty-four
months following such termination; PROVIDED, HOWEVER, that if, prior to the
end of such twenty-four-month period, the Executive shall obtain employment
with another employer, the amounts otherwise payable pursuant to this
clause (ii) shall be reduced by the amount of compensation earned by the
Executive from his new employment during such period (except that in no
event shall any such reduction result in the Executive receiving an amount
pursuant to this clause (ii) that would be less than the amount the
Executive would have earned if his Base Salary, Bonus and other benefits
had been continued for a period of six months following such termination);
1
4. A new Section 4(g) is added to the Employment Agreement,
effective as of April 1, 2006, providing as follows:
(g) DELAY OF PAYMENTS. In the event that any payment or
distribution to be made to the Executive hereunder is determined to
constitute "deferred compensation" subject to Section 409A of the Code, and
the Executive is determined to be a "specified employee" (as defined in
Section 409A of the Code), such payment or distribution shall not be made
before the date which is six months after the termination of the
Executive's employment (or, if earlier, the date of the Executive's death).
5. A new Section 5 is added to the Employment Agreement, and the
subsequent provisions of the Employment Agreement are appropriately
renumbered, effective as of April 1, 2006, providing as follows:
5. EXTENSION OF NONCOMPETITION PERIOD. The Executive agrees
that his noncompetion agreement with the Company will be amended to provide
that, in the event that the Executive's employment is terminated during the
Employment Period and prior to April 1, 2008, the noncompetition period
shall be 24 months.
6. The remaining provisions of the Employment Agreement shall not
be changed.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
to Employment Agreement as of the day and year first above written.
XXXXXXXX, INC.
By
------------------------------
EXECUTIVE:
------------------------------------
R. Xxxxx Xxxxx
2
