EXHIBIT 10.10.4
FOURTH AMENDMENT TO
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EMPLOYMENT AGREEMENT
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This Fourth Amendment to Employment Agreement (the "Fourth Amendment") is
made and entered into as of January 1, 2000, by and between XXXXXXX-XXXXXX,
INC., a Delaware corporation with its principal office located in Beverly Hills,
California (the "Company"), and Xxxxx X. Xxxxxxx, an individual ("Employee").
RECITALS
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WHEREAS, Company and Employee have entered into that certain Employment
Agreement dated as of January 1, 1996, (the "Agreement"), and amended January 1,
1997, January 1, 1998, and January 1, 1999, providing for the employment of
Employee by Company pursuant to the terms of such Agreement; and
WHEREAS, Company and Employee have agreed that the terms of the Employment
Agreement should be modified to change the Term of Employment, Salary, Stock
Options, Car Allowance and to add change in control stipulation.
AMENDMENT TO AGREEMENT
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NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereby amend the Agreement,
effective as of January 1, 2000 as follows:
1. The term of this Agreement is extended to December 31, 2002.
Therefore, Section 1 (a) of the Agreement is amended such that the
termination date of "December 31, 1999" is deleted and the
termination date of " December 31, 2002" is inserted in lieu
thereof.
2. Section 1(b) of the Agreement is deleted in its entirety and the
following is inserted in lieu thereof:
1(b) Employee shall be paid a base salary at the rate of
$25,000.00 monthly ($300,000.00 annualized) for the period of
January 1, 2000 to December 31, 2002, payable on such basis is the
normal payment pattern of the company, not to be less frequently
than monthly, subject to such deductions and withholdings as Company
may from time to time be required to make pursuant to applicable
law, governmental regulation or order.
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3. Section 1 (k) is added:
1 (k) Car Allowance. Employee shall be paid a car allowance of
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$1,000.00 per month.
4. Section 1 (l) is added:
1 (l) Change in Control. In the event the Employment Agreement
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is terminated due to change in control, the Employee shall, in
consideration of his execution of a General Release, be entitled to
payment from the Company equal to two (2) times the Employee's
annual compensation. The annual compensation would be the arithmetic
average of the most recent three (3) year period and would include
salary and bonus as reported in the Proxy Statement, (the Severance
Payment). Such severance payment shall be paid to employee following
his execution and delivery to Company of a General Release.
"Change in control" shall mean the first to occur of any of the
following events:
(a) Any "person" (as that term is used Section 13 and 14 (d)
(2) of the Securities Exchange Act of 1934 ("Exchange Act") becomes
the beneficial owner (as that term is used in Section 13 (d) of the
Exchange Act), directly or indirectly, of 50% or more of the
Company's capital stock entitled to vote in the election of
directors;
(b) During any period of not more than two consecutive years,
not including any period prior to the adoption of this Amendment,
individuals who at the beginning of such period constitute the board
of directors of the Company, and any new director (other than a
director designated by a person who has entered into an agreement
with the Company to effect a transaction described in clause (a),
(c), (d) or (e) of this section) whose election by the board of
directors or nomination for election by the Company's stockholders
was approved by a vote of at least three-fourths (3/4ths) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at
least a majority thereof;
(c) The shareholders of the Company approve any consolidation
or merger of the Company, other than a consolidation or merger of
the Company in which the holders of the common stock of the Company
immediately prior to the consolidation or merger hold more than 50%
of the common stock of the surviving corporation immediately after
the consolidation or merger;
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(d) The shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company; or
(e) The shareholders of the Company approve the sale or
transfer of all or substantially all of the assets of the Company to
parties that are not within a "controlled group of corporations" (as
defined in Code Section 1563) in which the Company is a member.
5. Section 1 (m) is added:
1 (m) Stock Options.
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(i) Company shall grant to Employee under KWI's 1992
Incentive and Nonstatutory Stock Option Plan non-transferable
incentive and nonstatutory options to purchase an aggregate of
30,000 shares of common stock at an exercise price equal to the
price of the common stock on June 8, 2000, the date said Stock
Options were approved by the Compensation and Stock Option Committee
of the Board of Directors, on such terms and conditions as are set
forth in the Stock Option Agreement between KWI and the Employee.
The options shall vest in accordance with the following schedule:
10,000 shares on First Anniversary of the option grant.
10,000 shares on Second Anniversary of the option grant.
10,000 shares on Third Anniversary of the option grant.
(ii) Company shall grant to Employee under KWI's 1992
Incentive and Nonstatutory Stock Option Plan non-transferable
incentive and nonstatutory options to purchase additional shares of
common stock at an exercise price equal to the price of the common
stock on the date named above in 1 (m) (i), June 8, 2000, on such
terms and conditions as are set forth in the Stock Option Agreement
between KWI and the Employee and according to the following
schedule:
12,000 shares upon achievement, in the year 2000, of combined
Residential Investments and Note Division N0I* of $9MM.
12,000 shares upon achievement, in the year 2000, of combined
Residential Investments and Note Division NOI* of $10MM.
12,000 shares upon achievement, in the year 2000, of combined
Residential Investments and Note Division NOI* of $11MM.
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12,000 shares upon achievement, in the year 2000, of combined
Residential Investments and Note Division NOI* of $12MM.
12,000 shares upon achievement, in the year 2000, of combined
Residential Investments and Note Division NOI* of $13MM.
*NOTE: Net Operating Income (NOI) for purpose of this Fourth
Amendment and corresponding new Section 1 m (ii) of Employee's
Employment Agreement, shall mean the gross revenue realized during
the applicable fiscal year, excluding revenues from the sale of
Xxxxxxxx, less costs and expenses properly charged to the
Residential Investment and Note Division gross revenues incurred
during the applicable fiscal year according to generally acceptable
accounting principles as determined in the commercially reasonable
judgment of Company's Chief Financial Officer.
The options shall vest in accordance with the following schedule:
One Third (1/3) of earned shares will vest on the First
Anniversary of the date the Company's audited financials for 2000
are signed by the Company's Independent Accounting Firm.
One Third (1/3) of earned shares will vest on the Second
Anniversary of the date the Company's audited financials for 2000
are signed by the Company's Independent Accounting Firm.
One Third (1/3) of earned shares will vest on the Third
Anniversary of the date the Company's audited financials for 2000
are signed by the Company's Independent Accounting Firm.
Subject to the foregoing, the Employment Agreement remains in full force and
effect, and Company and Employee hereby ratify and affirm the Employment
Agreement in each and every respect.
IN WITNESS WHEREOF, the undersigned have executed this Fourth Amendment as
of the date first above written.
"COMPANY" "EMPLOYEE"
Xxxxxxx-Xxxxxx Inc.
a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxx /s/ Xxxxx X. Xxxxxxx
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Xxxxxxx X. XxXxxxxx Xxxxx X. Xxxxxxx
Its Chief Executive Officer
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