FIRST AMENDMENT
Exhibit
10.91.1
FIRST
AMENDMENT
This
First
Amendment is entered into this 19th day of February, 2008, by and between
Building Materials Holding Corporation, a Delaware corporation (“Company”) and
Xxxxxxx X. Xxxxxx (“Executive”).
RECITALS
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A.
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The
Company
and Executive entered into an Employment Agreement dated April 1,
2006 (the “Agreement”) which provides for the employment of Executive by
the Company.
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B.
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The
Company
and Executive desire to amend the Agreement to increase the Executive’s
base salary, extend the term of the Agreement until December 31,
2010, comply with Section 409A of the Internal Revenue Code of 1986,
as
amended, and make certain other changes, each as set forth
herein.
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NOW
THEREFORE, the
parties hereby agree as follows:
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1.
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Section
1 of
the Agreement is hereby deleted in its entirety and replaced with
the
following:
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“This
Agreement
commenced on the Effective Date, and shall continue in effect for a period
ending December 31, 2010, or, if this Agreement is extended, such later date
as
mutually agreed upon (the "Employment
Term").”
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2.
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Section
3.1
of the Agreement is hereby amended to reflect that Executive’s base salary
is $450,000.
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3.
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Section
5.1
of the Agreement is hereby amended by deleting the phrase “and
for a period of one year following a termination of employment other
than
following a Change of Control”.
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4.
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Sections
5.2
and 5.3 of the Agreement are each hereby amended by deleting the
phrase
“other than following a Change of Control” from the first sentence thereof
and replacing it with the phrase “for any
reason”.
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5.
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Section
5.5
of the Agreement is hereby amended by deleting the words “three years”
from the first sentence thereof and replacing them with the words
“one
year”.
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6.
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Section
7.4
of the Agreement is hereby deleted in its entirety and replaced with
the
following:
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7.4 Termination
Without Cause.
The Company may,
at any time and without prior written notice, terminate Executive without Cause.
In the event that Executive's employment with the Company is terminated without
Cause, Executive shall receive payment for all earned but unpaid Base Salary,
and benefits the Executive is then entitled to receive under benefit plans
of
the Company, if any, less standard withholdings for tax and social security
purposes, through the Date of Termination. In addition, provided that Executive
executes a release of claims against the Company (in a form reasonably
satisfactory to the Company) and such release becomes effective, Executive
shall
receive (i) within 75 days payment in a lump sum of an amount equal to the
then current Base Salary through December 31, 2010; (ii) payment of the
amount of the Annual Bonus that Executive would be eligible to receive under
the
Company's Bonus Plan for the year in which the termination occurs; (iii) payment
of amounts accrued under the LTIP in accordance with the terms of the
LTIP, as
modified by
Section 3.4(d) hereof; (iv) assuming Executive is eligible and elects COBRA,
payment on Executive's behalf of monthly continuation premiums for health
insurance under Federal or State COBRA for a period of 18 months following
the
Date of Termination; (v) acceleration of the vesting of a portion of any
unvested stock options in the amount that would
have become
vested on or before December 31, 2010; (vi) benefits under the SERP,
provided that Executive shall become fully vested in his benefits under the
SERP
upon termination pursuant to this Section 7.4; (vii) the benefits provided
for
in Sections 3.7 and 3.8 hereof; (viii) payment of the Equity Bonus as provided
in Section 3.4 hereof, provided that Executive shall become fully vested in
his
benefits under Section 3.4 upon termination pursuant to this Section 7.4, and
(ix) any other benefits that Executive is entitled to receive as of the
Date of Termination under applicable benefit plans of the Company, less standard
withholdings for tax and social security purposes. No other compensation of
any
kind or severance or other payment of any kind shall be payable by the Company
to Executive after such Date of Termination. Except as specifically provided
in
this Section 7.5 and except as required by law, all benefits provided by the
Company to Executive under this Agreement or otherwise shall cease as of the
Date of Termination.
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7.
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Section
7.5
of the Agreement is hereby amended to add to the end thereof the
phrase “,
subject to, as applicable, Executive’s execution of the effective release
of claims described in Section
7.4.”
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8.
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Section
7.6(d) of the Agreement is hereby amended by deleting the introductory
language thereof in its entirety and replacing it with the
following:
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(d) "Good
Reason"
shall mean
Executive's resignation from employment within 180 days after the occurrence
of
one of the following events enumerated in this Section 7.6(d) without
Executive’s express written consent, provided, however, that Executive must
provide written notice to the Company within ninety (90) days after the
occurrence of the event allegedly constituting Good Reason, and the Company
shall have thirty (30) days after such notice is given to cure:
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9.
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Section
7.6(d)(ii) of the Agreement is hereby amended by deleting clause
(3)
thereof in its entirety and replacing it with the
following:
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(3) (A) with
respect to any fiscal year preceding the Company’s 2008 fiscal year, material
reduction in the amount of cash bonus paid to Executive under the Company’s
Annual Bonus Plan to an amount that is less than the highest cash bonus paid
to
Executive under the Bonus Plan for any of the three fiscal years immediately
preceding the fiscal year in which the Executive provides notice to the Company
of his termination for Good Reason (“Good Reason Notice”) and (B) with
respect to the Company’s 2008, 2009 and 2010 fiscal years (and any subsequent
fiscal year), a material reduction in his bonus opportunity under the Annual
Bonus Plan such that he no longer participates in the Annual Bonus Plan on
the
same terms as the senior executives of the Company generally;
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10.
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Section
7.6(d)(ii) of the Agreement is hereby amended by deleting clause
(5)
thereof in its entirety and replacing it with the
following:
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(5) (A) with
respect to any fiscal year preceding the Company’s 2008 fiscal year, reduction
in amounts allocated or accrued (whether or not funded) as a Company
contribution on behalf of Executive under the Company's SRIP (or any successor
plan) (“SRIP Accrual”) to an amount that is materially less than the highest
SRIP Accrual made on behalf of Executive for any of the three fiscal years
immediately preceding the year in which Good Reason Notice occurs or
(B) with respect to the Company’s 2008, 2009 and 2010 fiscal years (and any
subsequent fiscal year), a material reduction in the benefits provided to
Executive under the SRIP such that he no longer participates in the SRIP on
the
same terms as the senior executives of the Company generally;
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11.
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Section
8.1
of the Agreement is hereby deleted in its entirety and replaced with
the
following:
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8.1 Severance
Benefits.
If the employment
of Executive is terminated within the period commencing 3 months prior to a
Change in Control and ending 3 years following a Change in Control, the
provisions of Section 7 shall not apply and all payments shall be made in
accordance with the provisions of the
Building Materials Holding Corporation Severance Plan for Certain Executive
Officers, Senior Management and Key Employees of the Company and its
Subsidiaries, including any amendments thereto, as of the Effective Date
("Severance Plan").
For the avoidance
of any doubt, the vesting of any stock option or restricted stock grant shall
be
governed by the award agreement pursuant to which such stock option or
restricted stock grant was granted.
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12.
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Section
8.5
of the Agreement is hereby deleted in its
entirety.
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13.
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The
following
new Section 9 shall be added to the Agreement (with the existing
Sections
9, 10 and 11 (and all subsections thereof) renumbered accordingly):
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9. Code
Section
409A.
Notwithstanding
anything herein or in the Severance Plan to the contrary, to the extent that
the
Board determines, in its sole discretion, (a) at the time of Executive’s
termination of employment with the Company, he is a “specified employee” as
defined in Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code")
and
(b) that any payment or benefit to be provided under Section 7.4,7.5 or 8.1
to or for the benefit of Executive would be subject to the additional tax
imposed under Section 409A(a)(1)(B) of the Code or a successor or comparable
provision if paid at the time such payments and benefits are otherwise required
under this Agreement, the commencement of such payments and/or benefits shall
be
delayed until the earlier of (i) the date that is six months following the
Date of Termination or (ii) the date of Executive’s death; provided,
however, that an amount equal to the lesser of two times (x) annual compensation
or (y) the limit under Code Section 401(a)(17) shall not be subject to the
delay
described in the previous clause and instead shall be paid out as otherwise
scheduled.
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14.
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Section
11.13
of the Agreement is hereby deleted in its entirety. Existing Sections
11.14 and 11.15 are hereby renumbered to Sections 12.13 and 12.14.
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15.
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Section
11.15
of the Agreement is hereby deleted in its entirety and replaced with
the
following (renumbered Section 12.14 per paragraphs 13 and 14 of this
First
Amendment):
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12.14 Dispute
Resolution and Binding Arbitration.
Executive and the
Company agree that in the event a dispute arises concerning or relating to
Executive's employment with the Company, or any termination therefrom, such
dispute shall be submitted to binding arbitration in accordance with the
employment arbitration rules of Judicial Arbitration and Mediation Services
("JAMS")
by a single
impartial arbitrator experienced in employment law selected as follows: if
the
Company and Executive are unable to agree upon an impartial arbitrator within
ten (10) days of a request for arbitration, the parties shall request a panel
of
employment arbitrators from JAMS and alternatively strike names until a single
arbitrator remains. The arbitration shall take place in San Francisco,
California, and both Executive and the Company agree to submit to the
jurisdiction of the arbitrator selected in accordance with JAMS' rules and
procedures. Executive and the Company further agree that arbitration as provided
for in this section will be the exclusive and
binding remedy for any such dispute and will be used instead of any court
action, which is hereby expressly waived, except for any request by either
party
hereto for temporary or preliminary injunctive relief pending arbitration in
accordance with applicable law, or an administrative claim with an
administrative agency. The parties further agree
that the award of
the arbitrator shall be final and binding on both parties. The arbitrator shall
have discretion to award monetary and other damages, or no damages, and to
fashion such other relief as the arbitrator deems appropriate. The Company
will
be responsible for paying any filing fees and costs of the arbitration
proceeding itself (for example, arbitrators' fees, conference room,
transcripts), but each party shall be responsible for its own attorneys' fees.
THE COMPANY AND EXECUTIVE ACKNOWLEDGE AND AGREE THAT BY AGREEING TO ARBITRATE,
THEY ARE WAIVING ANY RIGHT TO BRING AN ACTION AGAINST THE OTHER IN A COURT
OF
LAW, EITHER STATE OR FEDERAL, AND ARE WAIVING THE RIGHT TO HAVE CLAIMS AND
DAMAGES, IF ANY, DETERMINED BY A JURY.
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16.
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All
remaining
provisions of the Agreement, other than those expressly modified
in this
Second Amendment, remain in full force and
effect.
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This
First
Amendment is effective February 19, 2008 and is dated the date first written
above.
| COMPANY | EXECUTIVE | |||
| BUILDING MATERIALS HOLDING CORPORATION | ||||
| By | By | |||
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Xxxxxx X. Xxxxxx |
Xxxxxxx
X.
Xxxxxx
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Chairman
and Chief Executive Officer
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