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Exhibit 10.4
AMENDMENT
TO
EMPLOYMENT AGREEMENT
WITH
XXXXXX XXXXXXXX
AMENDMENT TO EMPLOYMENT AGREEMENT WITH XXXXXX XXXXXXXX ("Amendment"),
dated as of October 1, 1998, between PAXAR CORPORATION, a New York Corporation
("the Company"), and XXXXXX XXXXXXXX (the "Employee").
PRELIMINARY STATEMENT
The Company and the Employee are parties to an Employment Agreement dated
as of February 13, 1989 (the "Employment Agreement"). Unless otherwise defined
herein capitalized terms used herein shall have the meanings ascribed to them in
the Employment Agreement.
The Company and the Employee have agreed to modify and amend certain terms
and provisions of the Employment Agreement as herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
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1. Paragraph 2 of the Employment Agreement is hereby amended in its entirety
to read as follows:
2. Term. Subject to the provisions of Paragraphs 9, 10 and 11
hereof, the term of Employee's employment shall commence on the date
hereof and continue for an initial period ending on February 13, 2000 (the
"Initial Term"). Employee's term of employment shall be extended for an
additional period of four (4) years (the "Extension Term") unless the
Employee provides written notice to the Company at least one hundred
twenty (120) days prior to the end of the Initial Term electing not to
extend the term of his employment. Following completion of the Extension
Term, the Employee's term of employment shall be renewed automatically for
additional one (1) year terms ("Annual Terms") in the absence of written
notice of termination given by (a) the Company at least one hundred twenty
(120) days prior to the date of renewal, or (b) Employee at least one
hundred (100) days prior to the date of renewal.
2. Subparagraph (a) of Paragraph 4 of the Employment Agreement is hereby
amended in its entirety to read as follows:
(a) During the period of his employment hereunder, Employee, subject
to the supervision and control of the Board of Directors of the Company,
shall be the President of the Apparel Identification operations of the
Company and shall report directly to the President of the Company.
Employee shall be the Vice-Chairman of the Company and a member of the
Executive Management Committee.
3. Subparagraphs (c) and (d) of Paragraph 9 of the Employment Agreement are
hereby amended in their entirety to read as follows:
(c) If the Company determines not to renew this Agreement at the end
of the Extension Term or any Annual Term, then the Employee shall have the
right, by written notice to the Company, to (i) act as, and the Company
agrees that if the Employee so determines, he shall become, the exclusive
Manufacturer's Representative of the Company (including any and all of its
divisions and subsidiaries) for those Customers, and upon the terms and
conditions, set forth in the Representative Agreement, or (ii) decline to
become a Manufacturer's Representative, and elect
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instead to receive the full amount of Fixed Compensation provided for
under Paragraph 3(a) hereof for a two year period, commencing upon the
expiration of this Agreement, payable at the times and manner provided for
in Paragraph 3(a), or (iii) act as a consultant in accordance with
Paragraph 9(g), or (iv) elect none of the alternatives in clauses (i),
(ii) or (iii) of this subparagraph (c).
(d) If the Company determines not to renew this Agreement as
contemplated in Paragraph 9(c) and the Employee makes the election set
forth in clauses (i), (ii) or (iv) of Paragraph 9(c), the Employee shall
not be subject to the provisions of Section 6 or 7 hereof in any respect
whatsoever after the expiration of this Agreement, but shall (i) be
subject to restrictive provisions of the Representative Agreement if he
elects to become a Manufacturer's Representative pursuant to Paragraph
9(c)(i), or (ii) execute a restrictive covenant in the form of Schedule B
hereto if he elects to receive compensation under Paragraph 9(c)(ii)
hereof, which shall be effective for the period during which, and only
during which, he receives Fixed Compensation pursuant to Paragraph
9(c)(ii) hereof.
4. Paragraph 9 of the Employment Agreement is hereby amended to add the
following new Subparagraphs (f) and (g):
(f) If the Employee determines not to renew this Agreement at the
end of the Initial Term or if Employee dies before the end of the Initial
Term, then (i) the Company will pay Employee the full amount of Fixed
Compensation provided for under Paragraph 3(a) hereof for a two-year
period, commencing upon expiration of this Agreement (the
"Post-Termination Period"), payable at the times and in the manner
provided for in Paragraph 3(a), (ii) during the Post-Termination Period,
the Company will continue to provide Employee and Employee's spouse with
health and medical insurance coverage under the special executive plan
maintained by the Company and will pay the premiums thereof, (iii)
Employee shall have the use of his Company automobile until the expiration
of the term its lease, (iv) all stock options granted to Employee under
the Company's employee stock option plans shall continue to vest and
remain exercisable during the Post-Termination Period, (v) provided that
Employee remains an employee of the Company through December 31, 1999, or
if Employee has been terminated without cause the Company shall pay any
Incentive Compensation earned for 1999, and (vi) notwithstanding the
duration of the Post-Termination Period, the one-year period referred to
in the introductory clause of Section 6 shall commence upon expiration of
this Agreement.
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(g) Subject to the provisions of Paragraphs 10 and 11 hereof, if
either the Extension Term or any Annual Term of this Agreement expires
without Employee's term of employment being renewed, then the Employee may
elect to become a consultant to the Company during the period commencing
with the termination of the term of Employee's employment and continuing
for ten (10) years (the "Consulting Term"). The Company shall pay the
Employee $125,000 per annum for all consulting services rendered by the
Employee during the Consulting Term. The Employee shall at the Company's
request render consultation services to the Company during normal business
hours and at mutually agreeable times. Nothing herein contained shall
require the Employee to devote any fixed or minimum number of hours per
week to such consultation and Employee's consultation fee shall not be
reduced or diminished by reason of the number of hours devoted to such
consultation; provided, however, under no circumstances will Employee be
required to devote in excess of ten (10) hours per week during the
Consulting Term. The Company, during the Consulting Term, will maintain in
place all insurance policies under which Employee and Employee's spouse is
a beneficiary, including, without limitation, all life, medical and
disability insurance policies which were in effect immediately preceding
the commencement of the Consulting Term. The provisions of paragraphs 6
and 7 hereof shall apply during the Consulting Term.
5. Subparagraph (a) of paragraph 10 of the Employment Agreement is hereby
amended in its entirety to read as follows:
(a) The Employee's employment shall terminate upon his death, and
may be terminated, subject to the provisions of Paragraph 9 hereof, at the
option of (i) the Employee pursuant to Section 11; or at the conclusion of
the Initial Term, the Extension Term or any Annual Term upon proper
written notice to the Company, or (ii) the Company upon proper written
notice to the Employee, (A) at the conclusion of the Extension Term or any
Annual Term, (B) as a result of his permanent disability as defined in
Paragraph 8(b) hereof, or (C) for cause. Termination "for cause" shall
mean termination only for acts of moral turpitude, including the
conviction of Employee for any felony offense, the admission by Employee
of drug and/or alcohol abuse or addiction or upon clear and convincing
proof that Employee has become addicted to or abuses drugs and/or alcohol.
6. Subparagraph 10(c) of the Employment Agreement is hereby amended
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in its entirety to read as follows:
(7) If Employee's employment is terminated by Employee's decision
contemplated by Paragraph 10(a), the Company's determination not to
renew the employment term at the conclusion of the Extension Term or
any Annual Term, or by the Company due to employee's permanent
disability, the Company shall remain obligated to pay Employee
pursuant to Paragraph 8 or Paragraph 9 of this Agreement, or to
comply with the Representative Agreement, as the case may be.
7. The terms this "Agreement," "hereof," "hereunder," and words of like
meaning appearing in the Employment Agreement shall mean and refer to the
Employment Agreement as hereby amended.
8. Except as otherwise amended pursuant to this Amendment, the Employment
Agreement shall remain in full force and effect, and the Company and the
Employee hereby reaffirm each of their respective agreements, covenants
and obligations set forth therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PAXAR CORPORATION
By:/s/ Xxxxxx Xxxxxxxx
__________________________
Xxxxxx Xxxxxxxx
Chairman
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
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