Contract
Exhibit 10.1
AMENDMENT
TO
THIS AMENDMENT TO EMPLOYMENT
AGREEMENT (this “Amendment”) is made and entered into effective as of
December 31, 2008 by and between, D3 Technologies, Inc., a
California corporation (“Corporation”), a wholly owned subsidiary of LMI AEROSPACE, INC., a
Missouri corporation (the “Parent”) and XXXX X. XXXXX
(“Employee”).
Whereas,
the Corporation and Employee are parties to an employment agreement between the
Corporation and Employee dated as of July 31, 2007 (the “Employment Agreement”),
a copy of which is attached and incorporated herein by reference;
Whereas, the Corporation and Employee
have agreed to amend the Employment Agreement;
Whereas, Section 11 of the Employment
Agreement provides that amendments thereto must be in writing and signed by both
parties;
NOW,
THEREFORE, the Corporation and Employee do hereby agree to the
following:
1. Section
2(A) of the Employment Agreement is hereby deleted and replaced with the
following (no subsections of 2(A) are deleted, replaced or revised unless
otherwise specified in this Amendment to the Employment Agreement):
(A) The
initial term of Employee's employment under this Agreement shall commence on
July 31, 2007 and shall terminate on January 1, 2011; provided, however, that
this Agreement shall be automatically extended for additional terms of one year
each unless not later than October 31 of any year beginning in 2010, either
party has given written notice to the other party of its or his intention not to
extend the term of this Agreement; and provided, further, that the term of
employment may be terminated upon the earlier occurrence of any of the following
events:
2. Section
2(A)(7) of the Employment Agreement is hereby deleted and replaced with the
following:
(7) At
the Employee’s option, after providing the Corporation with at least thirty (30)
calendar days advance written notice of his intention to terminate the
employment relationship.
If
employment is terminated for any of the reasons set forth in subparagraphs (3)
through (7) of this section 2(A), Employee shall be entitled to receive only the
Base Salary (as that term is hereinafter defined) accrued but unpaid as of the
date of the termination and shall be ineligible to receive any additional
compensation or severance pay. If, on the other hand, employment is
terminated by the Corporation during the term of this Agreement for any reason
other than those set forth in paragraphs (3) through (7) of this section 2(A),
subject to the conditions set forth in paragraphs 2(C) and (D) of this
Agreement, the Corporation shall provide severance pay to Employee in an amount
based upon his length of service with the Corporation. Specifically,
the Corporation shall provide Employee with six (6) months of Base Salary if he
has less than five (5) years of service with the Corporation as of the date of
his termination and with twelve (12) months of Base Salary if he has five (5) or
more years of service with the Corporation as of the date of his
termination. Such severance pay shall be paid in equal monthly
installments commencing immediately after the
termination. Notwithstanding the foregoing, if at the time of
Employee’s termination, Employee is considered a ‘specified employee’ within the
meaning of Section 409A(a)(2) of the Code, and if any payment that Employee
becomes entitled to under this Agreement would be considered deferred
compensation subject to Section 409A of the Code, then no such payment shall be
payable prior to the date that is earlier of (1) six months and one day after
Employee’s termination, or (2) Employee’s death, and the initial payment shall
include a catch-up payment covering amounts that would otherwise have been paid
during the six-month period but for application of this provision.
3. Section
2(B)(3) and Section 2(C) of the Employment Agreement are hereby deleted and
replaced with the following Paragraph (C):
(C) The
severance pay provided for in section 2(A) and 2(B) of this Agreement shall be
paid in equal monthly installments commencing immediately after the
termination. Notwithstanding the foregoing, if at the time of
Employee’s termination, Employee is considered a ‘specified employee’ within the
meaning of Section 409A(a)(2) of the Code, and if any payment that Employee
becomes entitled to under this Agreement would be considered deferred
compensation subject to Section 409A of the Code, then no such payment shall be
payable prior to the date that is earlier of (1) six months and one day after
Employee’s termination, or (2) Employee’s death, and the initial payment shall
include a catch-up payment covering amounts that would otherwise have been paid
during the six-month period but for application of this
provision. For purposes of calculating the present value of the
severance pay, the discount rate shall be the prime rate quoted in the Wall Street Journal on the
day the Corporation elects to pay the present value of the severance pay in a
lump sum.
4. The
first sentence of Section 3(B) of the Employment Agreement is hereby deleted and
replaced with the following:
(B) With
respect to each complete fiscal year of the Corporation during which (i) the
Employee is employed under the terms of this Agreement as of the first day of
the next fiscal year, and (ii) the Corporation's "Annual Income from Operations"
(as that term is hereinafter defined) is more than Three Million Dollars
($3,000,000.00), the Corporation shall pay to Employee, in addition to the Base
Salary, an annual "Performance Bonus".
5. All
references in the Employment Agreement to the “Agreement” and any other
references of similar import shall henceforth mean the Employment Agreement as
amended by this Amendment.
6. In
the event of a conflict between the provisions of this Amendment and the
provisions of the Employment Agreement (without regard to this Amendment), the
provisions of this Amendment shall control. All defined terms
appearing in this Amendment shall continue to have the same meaning as provided
in the Employment Agreement, unless modified by this Amendment.
7. Except
to the extent specifically amended by this Amendment, all of the terms,
provisions, conditions, covenants, representations and warranties contained in
the Employment Agreement shall be and remain in full force and effect and the
same are hereby ratified and confirmed.
8. This
Amendment shall be binding upon and inure to the benefit of the Corporation and
Employee and their respective heirs, executors, administrators, legal
administrators, successors and permitted assigns.
9. This
Amendment shall be governed by and construed in accordance with the substantive
laws of the State of Missouri (without reference to conflict of law
principles).
The
parties have executed this Amendment to Employment Agreement as of the date
first above- written.
D3 TECHNOLOGIES, INC.
("Corporation")
By: __________________________
Xxxxxx X. Xxxx, Vice
President
_______________________________
("Employee")
