AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
This Amendment No. 2 to Employment Agreement (this "Agreement"), made as of
February 20, 1996, is by and between Insignia Financial Group, Inc., a Delaware
corporation with an office at One Insignia Financial Xxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Company"), and Xxxxx X. Xxxxxxxx,
an individual with an office at One Insignia Financial Xxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "Executive").
Background
The Company and the Executive entered into an Employment Agreement dated as
of September 1, 1993 (the "Original Agreement") and an Amendment No. 1 to
Employment Agreement (the "Amendment") dated as of April 1, 1995. The Company
and the Executive now desire to amend the Original Agreement, as amended.
Statement of Agreement
In consideration of the foregoing, the mutual covenants and agreements set
forth herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Defined Terms. Capitalized terms used in this Agreement but not
otherwise defined herein shall have the meanings ascribed thereto in the
Original Agreement, as amended.
Section 2. Amendment of Section 1 of the Original Agreement. Section 1 of
the Original Agreement, as amended, is hereby amended by deleting "September 1,
1997" and inserting in its place "June 30, 1998".
Section 3. Amendment of Section 2 of the Original Agreement. Section 2 of
the Original Agreement, as amended, is hereby amended by deleting the third
sentence of Section 2(b).
Section 4. Amendment of Section 3 of the Original Agreement. Section 3 of
the Original Agreement, as amended, is hereby amended by deleting the third
sentence of subsection (d)(i) in its entirety and renumbering subsection (d)(ii)
as subsection (d)(i).
Section 5. Amendment of Section 3 of the Original Agreement. Section 3 of
the Original Agreement, as amended, is hereby amended by adding the following
new subsection (g) to Section 3:
"The Executive shall receive a bonus in the amount of $250,000.00 on
the occurrence of a Change In Control, Stock Change In Control or
other material change to the equity capital structure of the Company
prior to the end of the Employment Period and an additional bonus of
$250,000.00 ("Additional Bonus") on the date which is eighteen (18)
months following the date of the occurrence of such event if, and only
if, the Executive is still employed by the Company. If the Executive
is terminated by the Company for cause, the Executive shall no longer
be entitled to and shall have no claim for the Additional Bonus. For
purposes of this Section 3 (g), whether or not a material change to
the equity capital structure of the Company has occurred will be
determined by a vote of the majority of the disinterested members of
the Board of Directors of the Company acting in good faith."
Section 6. Amendment of Section 3 of the Original Agreement. Section 3 of
the Original Agreement, as amended, is hereby amended by adding the following
new subsection (h) to Section 3:
In the event of a Death Termination Event, Disability Termination
Event, or upon the occurrence of a Change In Control or Stock Change
In Control, all options and warrants then held by and granted to the
Executive will immediately vest and be exercisable by the Executive;
provided however that in the event of a Death Termination Event or
Disability Termination Event, any options shall only remain
exercisable for a period of one year following such termination event
(but not later than the scheduled expiration date of such options). In
the event of a Termination Without Cause, the Compensation Committee
of the Board of Directors, shall in its sole and absolute discretion,
determine whether or not to vest all options and warrants granted to
the Executive upon the occurrence of such Termination Without Cause.
Section 7. Amendment of Section 3 of the Original Agreement. Section 3 of
the Original Agreement, as amended, is hereby amended by adding the following
new subsection (i) to Section 3:
(i) Automobile Allowance. In addition to the other benefits provided
to the Executive hereunder, and at the sole cost and expense of the
Company, an annual automobile allowance in an amount to be determined
in the sole discretion of the Chief Executive Officer of the Company,
but in no event less than ten thousand dollars ($10,000) per year.
Section 8. Amendment of Section 3 of the Original Agreement. Section 3 of
the Original Agreement, as amended, is hereby amended by adding the following
new subsection (j) to Section 3:
(j) Term Life Insurance. The cost of term life insurance, providing a
death
benefit of three million dollars ($3,000,000) upon the life of the
Executive, the beneficiaries and owner of which shall be designated by
the Executive and which term life insurance shall be upon terms and
conditions, and in form and substance available at the time, and
otherwise reasonably satisfactory to the Executive in his sole
discretion and which term life insurance shall be paid for by the
Company during the Employment Period at the Company's sole cost and
expense.
Section 9. Amendment of Section 6 of the Original Agreement. Section 6(b),
6(d) and 6(e) of the Original Agreement, as amended, are hereby amended by
deleting in each Subsection "September 1, 1997" and inserting in its place "June
30, 1998".
Section 10. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be mailed by
certified mail, return receipt requested, or delivered against receipt to the
party to whom it is to be given, at the address of such party set forth in the
preamble of this Agreement (or to such other address as such party shall have
furnished in writing in accordance with the provisions of this Section). Notice
to the Estate shall be sufficient if addressed to the Executive as provided in
this Section. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Section 11. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
Section 12. Binding Effect. The Executive's rights and obligations under
this Agreement shall not be transferrable by assignment or otherwise, such
rights shall not be subject to commutation, encumbrance or the claims of the
Executive's creditors, and any attempt to do any of the foregoing shall be void.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the Executive and his heirs and personal representatives, and shall be
binding upon and inure to the benefit of the Company and its successors.
Section 13. Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
Section 14. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
Section 15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of South Carolina, without
reference to the conflict of law provisions hereof.
Section 17. Affirmation. The parties hereto agree that the Original
Agreement, and the Amendment, as amended hereby, are in full force and effect on
and as of the date hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxx X. Lines
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Name: Xxxx X. Lines
Title: General Counsel and Secretary
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
