EXHIBIT 10.1
THIRD AMENDMENT TO THE
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
DATED AS OF SEPTEMBER 17, 1997
BETWEEN
XXXXXX XXXX AND XXXXXXX INDUSTRIES, INC.
This Third Amendment to the Amended and Restated Employment
Agreement is made as of October 25, 2007, by and between Xxxxxxx
Industries, Inc., a Delaware corporation (the "Company"), and Xxxxxx Xxxx
(the "Executive").
WHEREAS, the Company and the Executive are parties to an Amended and
Restated Employment Agreement dated as of September 17, 1997 (the
"Agreement"); and
WHEREAS, the Company and the Executive desire to amend the Agreement
in order to extend the term of the Agreement as well as to bring the
Agreement into compliance with Section 409A of the Internal Revenue Code of
1986, as amended.
NOW, THEREFORE, the parties agree as follows:
1. Section 1 of the Agreement shall be amended in its entirety to
read as follows:
"The Employer agrees to employee the Executive, and the Executive
hereby accepts such employment, as Chairman of the Board of Directors
of the Employer. The Executive's term of employment under this
Agreement shall commence as of the date first written above and shall
end on December 31, 2008; provided, that unless either party gives
written notice to the other, at least 120 days prior to the end of the
term of employment, of its intention not to renew the term, such term
shall continue in effect until December 31, 2009, and shall thereafter
renew for successive one-year periods until such notice is given or
until Executive's employment is otherwise terminated as provided
herein (the term of employment being referred to as the "Employment
Period").
2. The third sentence of Section 4(c) of the Agreement shall be
amended in its entirety to read as follows:
"In addition, at the Employer's expense, the Executive shall
continue to participate in all of the Employer's health plans and
programs for the remainder of the Employment Period as if he remained
employed for such period, such benefits to be comparable to those
currently provided."
3. Section 4(g)(iii) of the Agreement shall be deleted in its
entirety.
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4. A new Section 4(h) shall be added to the Agreement and shall read
in its entirety as follows:
"Notwithstanding any provision in the Agreement to the contrary,
any payment otherwise required to be made hereunder to the Executive
at any date as a result of the termination of the Executive's
employment shall be delayed for such period of time as may be
necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the
Internal Revenue Code of 1986, as amended (the "Code"). On the date
that is six months and one day following the date on which the
Executive's employment is terminated, there shall be paid to the
Executive, in a single cash lump sum, an amount equal to the aggregate
amount of all payments delayed pursuant to the preceding sentence.
Thereafter, any payment required to be made as a result of the
termination of the Employee's employment shall be made at the
originally scheduled time or times in accordance with the terms set
forth herein.
5. The other provisions and cross-references of the Agreement shall
be renumbered accordingly as a consequence of the additions and deletions
described herein.
6. To the extent not amended hereby, the Agreement shall continue
with full force and effect in accordance with its terms.
IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first set forth above.
XXXXXXX INDUSTRIES, INC. XXXXXX XXXX
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxx
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By: Xxxx X. Xxxxxxxxx Signature
Title: Vice President,
General Counsel and Secretary
Xxxxxx Xxxx
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Printed Name
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