TBC MANAGEMENT, LTD.
AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT
June ____, 2002
THIS AMENDMENT NO. 3 TO EMPLOYMENT AGREEMENT (the "Third Amendment") is
made this ___ day of ___________, 2002 by and between Xxxxxxx X. Xxxxxxx
("Employee") and TBC Management, Ltd., a Texas limited partnership (the
"Company") and agreed to and accepted by Xxxxxx Boats & Motors, Inc., a Texas
corporation ("Xxxxxx Boats"). All capitalized terms, if not otherwise defined
herein, shall have the meanings ascribed in the "Letter Agreement" (as
hereinafter defined).
WHEREAS, Employee, Company and Xxxxxx Boats are parties to a certain
Letter Agreement dated November 16, 1999, as amended by an Amendment to
Employment Agreement dated April 5, 2001 and an Amendment No. 2 to Employment
Agreement dated March ___ 2002, which set forth the terms and conditions of
Employee's employment (together, the "Letter Agreement"); and
WHEREAS, the Company desires to propose continued employment to
Employee, by way of this Third Amendment and amend the terms of the Letter
Agreement in certain respects.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby amend the Letter
Agreement as follows and all other terms, conditions and covenants shall remain
unchanged:
1. (A) Employee and Company agree that the Letter Agreement is hereby
amended by deleting the first sentence of Section 2 of the Letter Agreement in
its entirety and replacing it with the following:
"2. Extent of Service. The term of this employment contract
with the Company shall expire on the sixth anniversary of the Effective Date (as
defined in paragraph 3 hereof) of this Letter Agreement, unless sooner
terminated in accordance with the terms hereof. The expiration hereof shall not
terminate employment, it shall merely terminate the contractual provisions of
this Letter Agreement."
(B) By adding to Section 5 of the Letter Agreement the
following sentence as the last sentence thereof:
"All non-qualified stock options granted to Employee under the
Xxxxxx Boats & Motors, Inc. 1995 Incentive Plan during the 1995 calendar year
shall be modified from a ten (10) year life from the date of grant to a twelve
(12) year life from the date of grant. Accordingly, such options shall not
expire until May 17, 2007. Accordingly, the life of all option agreements
covering such options shall automatically, and without further action on the
part of any party hereto, be extended and shall expire on May 17, 2007."
(C) By deleting Section 9 of the Letter Agreement in its
entirety and replacing it with the following:
"9. Termination; Resignation; Severance. This Letter Agreement
may be terminated as follows:
(a) For Cause. This Agreement may be
terminated for Cause (as hereinafter defined) at any time by the Company
effective immediately upon written notice to the Employee, and upon such
termination, or in the event of resignation by Employee (other than resignation
during the sixty (60) day period following a Change of Control), all of the
Employee's rights to payments (other than payment for services already rendered
and expenses incurred through the date of such termination or resignation) and
any other benefits otherwise due hereunder shall cease on the date of such
termination or resignation.
The Company shall have "Cause" for termination of the Employee
if any of the following has occurred:
(i) Employee's gross neglect or willful
failure to perform substantially his duties
hereunder, which failure (if it can be cured) is not
cured within thirty (30) days after written notice of
such failure from the Company to Employee;
(ii) an act or acts on Employee's part
constituting a crime which involves dishonesty or
breach of trust or constituting a felony under the
laws of the United States or any state thereof, upon
Employee's conviction therefor;
(iii) any fraud, embezzlement,
misappropriation of funds or any crime of moral
turpitude by the Employee; or
(iv) the Employee has breached any material
provision or covenant contained in this Letter
Agreement, which breach (if it can be cured) shall
not have been cured within thirty (30) days after
written notice of such breach from the Company to
Employee.
(b) Without Cause. This Agreement may be
terminated without Cause at any time by the Company effective immediately upon
written notice to the Employee, and upon such termination, the Employee shall
receive from the Company the greater of:
(i) the amount of salary payable, plus
accrued bonus, if any, during the remaining portion of the
term of this Letter Agreement, which amount shall be payable
in the same manner as such compensation would have been
payable had you not been terminated, provided that the Company
may elect to pay or you may elect to receive such compensation
as a lump sum payment; or
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(ii) one (1) month severance for each full
year of service with Xxxxxx Boats and one-twelfth (1/12) of
one (1) month's severance for each full calendar month of
service during any partial year of service with Xxxxxx Boats,
which amounts shall be payable in the same manner as such
compensation would have been payable had you not been
terminated, provided that the Company may elect to pay or you
may elect to receive such compensation as a lump sum payment.
(c) Resignation; Change of Control. In the event you
submit your resignation within the sixty (60) day period after the date of a
Change of Control, then you will be entitled to receive 2.99 times your annual
compensation with proration of the annual bonus, if any, for the year in which
the Change of Control occurs, which amounts shall be payable over a three-year
period in the same manner as such compensation would have been payable had you
not resigned; provided, the Company may elect to pay or you may elect to receive
such compensation as a lump sum payment. Notwithstanding any other provision in
this Letter Agreement, any action taken, omission or event caused by Tracker
Marine, L.L.C. or any of its affiliates shall not be deemed a Change of
Control."
(D) By deleting Section 10(c) of the Letter Agreement in its
entirety.
(E) By adding to Section 11(b) of the Letter Agreement the
following sentence as the last sentence thereof: "Notwithstanding the foregoing,
in the event this Letter Agreement is not renewed upon any expiration hereof,
the non-compete provision herein shall be eliminated.
2. The Letter Agreement, as amended by this Third Amendment, continues
in full force and effect. Except as expressly set forth herein, this Third
Amendment shall not affect the Letter Agreement dated November 16, 1999 nor any
of the agreements or other documents referred to therein.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the Effective Date.
TBC MANAGEMENT, LTD., a Texas limited partnership
By:
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Title:
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Address for Notices: EMPLOYEE
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Xxxxxxx X. Xxxxxxx
(Signatures continued on next succeeding page)
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AGREED TO AND ACCEPTED this ____ day of _____________, 2002.
XXXXXX BOATS & MOTORS, INC., a Texas corporation
By:
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Title:
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By:
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Title: Chairman of the Compensation
Committee of the Board of Directors
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