AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT 10.3
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT (the “Amendment”) is effective as of this 17th day of May, 2011, to the
EMPLOYMENT AGREEMENT between CKx, Inc., a Delaware corporation (the “Employer”), and Xxxxxx
X. Xxxxx (the “Executive”).
WHEREAS, the Employer and the Executive entered into that certain Employment Agreement, made
as of February 1, 2010, the “Employment Agreement”); and
WHEREAS, the Employer and Executive desire to amend the Employment Agreement in order to
incentivize the Executive to remain employed during a six-month transition period following the
proposed transaction that may result in a Change in Control.
NOW, THEREFORE, the Employer and the Executive agree as follows:
1. Definitions. All capitalized terms used herein, and not expressly defined herein,
shall have the respective meanings given to such terms in the Employment Agreement.
2. Amendment to Section 12.2 of the Employment Agreement. Section 12.2 of the
Employment Agreement is hereby amended by adding the following as the final paragraph of such
Section:
“Notwithstanding the foregoing, a Change in Control with respect to the proposed
acquisition of the Employer by an affiliate of Apollo Global Management (the
“Apollo Transaction”) shall be deemed to occur upon the Effective Time (as
defined in that certain Agreement and Plan of Merger, dated as of May 10, 2011, by
and among Colonel Holdings, Inc., Colonel Merger Sub, Inc. and the Employer, as
amended from time to time (the “Merger Agreement”)); provided,
however, that if the Merger (as defined in the Merger Agreement) has not
been consummated by the Merger Outside Date (as defined in the Merger Agreement),
then a Change in Control shall be deemed to occur upon the Acceptance Time (as
defined in the Merger Agreement).”
3. Amendment to Section 12.6 of the Employment Agreement. Section 12.6 of the
Employment Agreement is hereby amended by deleting such Section in its entirety and replacing it
with the following:
“12.6 Termination Following a Change in Control.
(a) Except as provided below, if, within 12 months following a Change
in Control, the Employer terminates Executive’s employment without
Cause, other than due to disability or death, or
there is a Constructive Termination without Cause (a “Change in
Control Termination”), the Executive shall be entitled to be paid
by the Employer, as soon as practicable but no later than two and
one-half months following the date of termination:
(i) the Base Salary in effect on the date of termination (or
in the event a Base Salary reduction is the basis for a
Constructive Termination without Cause, the Base Salary in
effect immediately prior to such a reduction) through the date
of termination, plus
(ii) the greater or (x) the amount specified under Section
12.5(b) above, or (y) a lump sum equal to (A) the Base Salary
in effect on the date of termination (or in the event a Base
Salary reduction is the basis for a Constructive Termination
without Cause, the Base Salary in effect immediately prior to
such a reduction) for one (1) year following such termination,
plus (B) a lump sum equal to the amount of the target Annual
Cash Bonus specified for the year in which such termination
occurs in any executive incentive bonus plan adopted by the
Compensation Committee, or if no such plan has been adopted,
the amount of the Target Bonus.
(b) In connection with the Apollo Transaction, the Executive shall
have the right to terminate his employment with the Employer on a
voluntary basis, for any reason, during the 30-day period (the
“Resignation Period”) immediately following the date that is
six months after the Effective Time (such six-month period, the
“Transition Period”). If the Executive resigns during the
Resignation Period or if the Employer terminates the Executive during
the Transition Period for any reason other than for Cause, then (i)
such resignation or termination shall be deemed to be a “Constructive
Termination without Cause,” and (ii) the Executive shall be entitled
to receive the greater of the amount specified under Section 12.5(b)
above calculated as of (x) the Effective Time or (y) the date of his
resignation (the greater of (x) and (y), the “Severance
Amount”); provided, that, in either case, the Severance
Amount will be reduced to the greatest amount which will result in no
portion thereof being a “parachute payment” within the meaning of Code
Section 280G, if and only if the after-tax proceeds of the Severance
Amount payable to the Executive would be greater than if such
reduction would not have applied.
(c) In either case of subsection (a) or (b), the Executive shall also
be entitled to the rights specified in Section 12.5(c) for the period
set forth in such Section.”
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4. Effect of Amendment. Except as expressly set forth herein and in Amendment, the
Employment Agreement shall be and remain in full force and effect as originally written, and shall
constitute the legal, valid, binding and enforceable obligations of the parties thereto.
5. Governing Law. This Amendment shall be interpreted, construed, and enforced in
accordance with the internal laws of the State of New York, without regard to conflicts of law
principles.
6. Successors and Assigns. This Amendment, and the Executive’s rights and obligations
hereunder, may not be assigned by the Executive and any prohibited assignment attempted by the
Executive is void. This Amendment shall be binding on any successor to the Employer, whether by
merger, acquisition of substantially all of the Employer’s assets, or otherwise, as fully as if
such successor were a signatory hereto and the Employer shall cause such successor to, and such
successor shall, expressly assume the Employer’s obligations hereunder. Notwithstanding anything
else herein contained, the term “Employer” as used in this Amendment, shall include all such
successors.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first above
written.
| CKX, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President, Chief Financial Officer and Treasurer |
|||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
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