AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (the "Amendment") is entered into as of the 22nd day of
March, 1999, by XXX XXXX CORPORATION, a Delaware corporation (the "Company"),
and XxXxx X. Xxxxxxxx, Xx..
WHEREAS, the Company and the Employee have entered into that certain
Employment Agreement (the "Agreement"), dated April 11, 1997; and
WHEREAS, the Company and the Employee desire to amend the Agreement in
certain respects;
NOW THEREFORE, the Agreement is hereby amended as follows:
1. Section 9(e)(4) of the Agreement is hereby amended to read as
follows:
9(e)(4) Two additional elements of Good Reason shall be added
as follows:
(A) Employee is assigned to, or Company's office at
which Employee is principally employed on the Relevant Date is
relocated to, a location which would require a round-trip
commute to work from Employee's principal residence on the
Relevant Date of more than 100 miles per day.
(B) Failure of Company to obtain an agreement
satisfactory to Employee from any successor to the business,
or substantially all the assets, of Company to assume this
Agreement or issue a substantially similar agreement.
2. Section 9(g)(1) of the Agreement is hereby amended to read as
follows:
9(g)(1) Within five days following Employee's termination, a
lump sum severance payment will be made to Employee. The lump
sum severance payment shall be in an amount equal to: (i) 2.5
times Employee's yearly Base Salary as set forth in Section 3
or as it may be increased from time to time; plus (ii) 2.5
times the greatest of (a) the average annual incentive
compensation paid to Employee pursuant to the MIP (or any
predecessor or successor plan) with respect to the five fiscal
years preceding the fiscal year in which the Change in Control
occurs, or (b) an amount equal to 100% of the incentive
compensation paid to Employee pursuant to the MIP (or any
predecessor or successor plan) during the 12 month period
prior to the Termination Date, or (c) an amount equal to the
Employee's Base Salary as set forth in Section 3 or as such
Base Salary may be
increased from time to time, multiplied by such Employee's
current target bonus percentage under the MIP then in effect;
minus (iii) the total amounts due to Employee, if any,
pursuant to Sections 8(b)(1) and (2).
3. Section 10 of the Agreement is hereby amended to read as
follows:
10. EXCISE AND INCOME TAX GROSS-UP
------------------------------
The Internal Revenue Code of 1986 (the "Code")
imposes significant tax burdens on the Employee and Company if
the total amounts received by the Employee due to a Change in
Control exceed prescribed limits. These tax burdens include a
requirement that the Employee pay a 20% excise tax on certain
amounts received in excess of the prescribed limits and a loss
of deduction for Company. If, as a result of these Code
provisions, the Employee is required to pay such excise tax,
then upon written notice from the Employee to Company, Company
shall pay the Employee an amount equal to the total excise tax
imposed on the Employee (including the excise tax
reimbursements due pursuant to this sentence and the excise
taxes on any federal and state tax reimbursements due pursuant
to the next sentence). If Company is obligated to pay the
Employee pursuant to the preceding sentence, Company also
shall pay the Employee an amount equal to the "total presumed
federal and state taxes" that could be imposed on the Employee
with respect to the excise tax reimbursements due to the
Employee pursuant to the preceding sentence and the federal
and state tax reimbursements due to the Employee pursuant to
this sentence. For purposes of the preceding sentence, the
"total presumed federal and state taxes" that could be imposed
on the Employee shall be conclusively calculated using a
combined tax rate equal to the sum of (a) the highest
individual income tax rate in effect under (I) Federal tax law
and (ii) the tax laws of the state in which the Employee
resides on the date that the payment under this Section 10 is
computed and (b) the hospital insurance portion of FICA. No
adjustments will be made in this combined rate for the
deduction of state taxes on the federal return, the loss of
itemized deductions or exemptions, or for any other purpose.
The Employee shall be responsible for paying the actual taxes.
The amounts payable to the Employee pursuant to this or any
other agreement or arrangement with Company shall not be
limited in any way by the amount that may be paid pursuant to
the Code without the imposition of an excise tax or the loss
of Company deductions. Either the Employee or Company may
elect to challenge any excise taxes imposed by the Internal
Revenue Service and the Employee and Company agree to
cooperate with each other in prosecuting such challenges. If
the Employee elects to litigate or
otherwise challenge the imposition of such excise tax,
however, Company will join the Employee in such litigation or
challenge only if Company's General Counsel determines in good
faith that the Employee's position has substantial merit and
that the issues should be litigated from the standpoint of
Company's best interest.
4. Section 12(e) of the Agreement is hereby amended to read as
follows:
12(e) EXPENSES
The costs and expenses of any mediator shall be borne by
Company. Should the Employee or Company, at any time, initiate
arbitration for breach of this Agreement, Company shall
reimburse the Employee for all amounts spent by the Employee
to pursue such arbitration, unless the arbitrator finds the
Employee's action to have been frivolous and without merit.
5. Section 18 of the Agreement is hereby amended to read as
follows:
GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of
Delaware.
6. Except as amended herein, the provisions of the Agreement,
shall continue in full force and effect.
XXX XXXX CORPORATION
By:/s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Its: Senior Vice President
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COMPANY
/s/ XxXxx X. Xxxxxxxx, Xx.
---------------------------------
XxXxx X. Xxxxxxxx, Xx.
Employee
