Exhibit 10.4
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Amendment to the Agreement Between
XXXXXXXX'X HOLDINGS, INC.
and
XXXXXX X. XXXXXXXX
This Amendment (this "Amendment") to the Employment Agreement (the
"Agreement") made and entered into as of January 1, 2001, as amended on May 10,
2002, between Xxxxxxxx'x Holdings, Inc., a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxxxxx, an individual residing at ___________________________
____________________ (the "Executive"), is dated as of February 12, 2004.
Whereas, the Company and the Executive wish to extend the term of the
Agreement and make certain other modifications to the Agreement, as set forth
below;
NOW, THEREFORE, IT IS AGREED:
1. Section 2 of the Agreement is hereby amended to read as follows:
"2. Term of Employment. The Company agrees to employ the
Executive, and the Executive agrees to render personal services to the
Company and its Subsidiaries as Chief Executive Officer of the Company
until June 30, 2008 (the "Initial Term"), which Initial Term shall be
automatically extended for successive 12 month periods on the same
terms and conditions, unless one Party provides to the other party a
notice of non-renewal at least six (6) months prior to the expiration
of the Initial Term or any extension thereof (hereinafter, the Initial
Term, as the same may be extended, shall be referred to as the "Term").
Executive shall not be required to hold any position or to perform any
duty or assignment materially inconsistent with those positions or his
experience and qualifications, it being agreed and understood that the
personal services to be rendered by Executive to the Company and its
Subsidiaries hereunder are of a special and unique character."
2. The first paragraph of Section 16(e) of the Agreement is hereby
amended to read as follows:
"(e) Change of Control. If Executive's employment is
terminated coincident with or after a Change of Control (as defined
below), either by the Company or by Executive for Good Reason,
Executive shall be paid, within 10 days after such termination, a lump
sum, in cash, equal to (i) 24 months' base salary as then in effect,
plus (ii) two times the average of the bonuses, if any,
earned by Executive in the three Fiscal Years preceding the date of
termination. In addition, Executive shall be entitled to any amounts to
which Executive may be entitled pursuant to the plans, policies and
practices of, or benefits provided by, the Company as then in effect.
Except as provided in this Section 16(e), upon a termination of
employment pursuant to this paragraph, all other benefits under this
Agreement (except life insurance under Section 8(b), medical insurance
under Section 9(b), indemnification under Section 19 and reimbursement
of legal fees and expenses under Section 26(g)) shall lapse, expire and
be forfeited. Anything to the contrary herein notwithstanding, if any
payment pursuant to this Section 16(e), when added to any other amounts
paid or payable under this Agreement or any other plan, practice,
policy, program or arrangement of the Company, would be a "parachute
payment" as defined in section 280G of the Internal Revenue Code of
1986, as amended, such payment and benefits shall be limited to the
largest portion of such payment and benefits as can be paid without
being deemed a "parachute payment." In the event of a reduction
pursuant to the preceding sentence, the Company shall reduce the
payment and/or benefits as the Company and the Executive shall mutually
agree."
3. A new subsection (g) shall be added to Section 26 of the Agreement
to read as follows:
"(g) On or after a Change of Control, the Company shall pay
and be solely responsible for any reasonable attorneys' fees and
expenses and court costs incurred by the Executive to the extent the
Executive is successful to a material degree in pursuing any claim or
dispute arising as a result of the failure by the Company to perform
its obligations under Section 16(e) of this Agreement or in connection
with any action which may be brought, by or in the name or for the
benefit of the Company contesting the validity or enforceability of
Section 16(e) of this Agreement."
4. The remaining terms of the Agreement remain in full force and
effect.
5. This Amendment may be executed in one or more counterparts, and all
such counterparts shall constitute one Amendment.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on the day and year first above written.
Xxxxxxxx'x Holdings, Inc.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chief Operating Officer
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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