EXHIBIT 10.1
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AMENDMENT TO
EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT dated May 1, 2009 between
Xxxxxxx X. Xxxxxxx (the "Executive") and Xxxxxxxx, Inc., a Delaware
corporation (the "Company").
WHEREAS, the Executive and the Company are parties to an Employment
Agreement dated as of September 28, 2005 (the "Employment Agreement");
WHEREAS, the Employment Agreement provides that if the Executive is
employed by the Company on September 28, 2010 (or if his employment
terminates prior to that date under certain circumstances described in the
Employment Agreement), he is entitled to receive, following his termination
of employment, a supplemental pension under the Supplemental Key Executive
Retirement Plan of Xxxxxxxx, Inc. (the "SERP") calculated as though the
Executive had completed 20 years of service with the Company (such
supplemental pension, the "Supplemental SERP Benefit");
WHEREAS, the Company previously amended the SERP with respect to all
participants therein, other than the Executive, to provide that the SERP
would become a "frozen plan" and that all benefit accruals thereunder would
cease effective March 31, 2009;
WHEREAS, the Company and the Executive desire to amend the Employment
Agreement to provide that the Supplemental SERP Benefit will be provided
under the NQ Excess Plan of Xxxxxxxx, Inc. (the "DC Excess Plan"); and
WHEREAS, the Company is amending the SERP with respect to the
Executive to provide that the SERP became a "frozen plan" and that all
benefit accruals thereunder ceased effective March 31, 2009.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Company and the Executive hereby agree as
follows:
1. Section 3(g) of the Employment Agreement is amended in its
entirety, effective as of March 31, 2009, to read as follows:
(g) SUPPLEMENTAL RETIREMENT BENEFIT. If (i) the Executive is
employed by the Company on the fifth anniversary of the Effective Date,
(ii) the Executive is terminated prior to such fifth anniversary without
Cause (as defined below), or (iii) following a "Change in Control" (as
defined in the Xxxxxxxx, Inc. Executive Special Severance Plan), the
Executive is terminated prior to such fifth anniversary, then, as of such
fifth anniversary or the date of the Executive's termination, as
applicable, the Company shall credit $1,323,684 to the Executive's account
in the NQ Excess Plan of Xxxxxxxx, Inc. Distribution of such amount, as
adjusted for any earnings or losses (the "Supplemental Benefit), shall
commence on the Executive's "Initial Payment Date" (as that term is defined
in the Supplemental Key Executive Retirement Plan of Xxxxxxxx, Inc. (the
"SERP")). The Supplemental Benefit shall be paid in the form of a life
annuity (as defined in the Treasury Regulations promulgated under section
409A of the Internal Revenue Code of 1986, as amended), which annuity shall
be actuarially equivalent to the form of benefits that would have been
provided under the SERP had the Executive received his supplemental
retirement benefit under the SERP.
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2. The remaining provisions of the Employment Agreement shall not
be changed.
3. The benefit provided by item 1 above is intended to constitute,
for purposes of section 409A of the Internal Revenue Code of 1986, as
amended (the "Code"), a substitution of the deferred compensation to which
the Executive is entitled under the SERP taking into account the Employment
Agreement (prior to the amendment contained herein); however, this
substitution is intended to not constitute a subsequent deferral of such
deferred compensation or a change in the time or form of payment of such
deferred compensation. Payment of the substituted deferred compensation
under the DC Excess Plan shall commence at the time the benefit under the
SERP would have commenced and the payment of such substituted deferred
compensation under the DC Excess Plan shall be made in the form of a life
annuity for purposes of section 409A of the Code and shall be actuarially
equivalent to the form of benefit that would have been provided under the
SERP.
4. The Executive consents to the retroactive amendment of the SERP
to provide that, with respect to the Executive, the SERP shall be a "frozen
plan" and that all benefit accruals thereunder shall cease effective as of
March 31, 2009.
5. Upon the Company crediting to the Executive's account under the
DC Excess Plan the amount described in item 1 above, the Executive's
benefit under the SERP shall be cancelled and the Executive shall cease to
be a participant therein at such time.
6. Effective April 1, 2009, the Executive shall be eligible to
participate in the DC Excess Plan pursuant to its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
to Employment Agreement as of the day and year first above written.
XXXXXXXX, INC.
By /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Senior Vice President, Finance,
Secretary, Treasurer, and
Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
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