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EXHIBIT 10.4
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
This is the First Amendment to an Employment Agreement dated as of January 1,
2000, (the "Agreement"), between Xxx Xxxx Corporation ("Company") and Xxxxx X.
Xxxxxxxxx.
The Agreement is amended as follows:
Section 9(d) shall be deleted and replaced in its entirety by the following:
(d) CHANGE IN CONTROL DEFINED
For purposes of this Agreement, a "Change in Control" and "Potential
Change in Control" shall be defined as follows:
A "Change in Control" shall be deemed to have occurred in any or all of
the following instances:
(1) Any "person" as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended, other than a trustee or other fiduciary
holding securities under an employee benefit plan of
Company or a corporation owned directly or indirectly
by the stockholders of Company in substantially the
same proportions as their ownership of stock of
Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of Company representing 20%
or more of the total voting power represented by
Company's then outstanding Voting Securities (as
defined below); or
(2) During any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of Company and any
new director whose election by the Board of Directors
or nomination for election by Company's stockholders
was approved by a vote of at least two-thirds of the
directors then still in office who either were
directors at the beginning of the period or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a
majority thereof; or
(3) The stockholders of Company approve a merger or
consolidation of Company with any other corporation,
other than a merger or consolidation which would
result in the Voting Securities of Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by
being converted into Voting Securities of the
surviving entity) at least 80% of the
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total voting power represented by the Voting
Securities of Company or such surviving entity
outstanding immediately after such merger or
consolidation; or
(4) The stockholders of Company approve a plan of
complete liquidation of Company or an agreement for
the sale or disposition by Company of (in one
transaction or a series of transactions) all or
substantially all Company's assets.
A "Potential Change in Control" shall be deemed to have occurred in any
or all of the following instances:
(1) Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in
Control;
(2) Any person (including Company) publicly announces an
intention to take or to consider taking actions which
if consummated would constitute a Change in Control;
(3) Any person other than a trustee or other fiduciary
holding securities under an employee benefit plan of
Company or a corporation owned, directly or
indirectly, by the stockholders of Company in
substantially the same proportions as their ownership
of stock of Company who is or becomes the beneficial
owner, directly or indirectly, of securities of
Company representing 10% or more of the combined
voting power of the Company's then outstanding Voting
Securities, increases such person's beneficial
ownership of such securities by five percentage
points (5%) or more over the percentage so owned by
such person; or
(4) The Board of Directors adopts a resolution to the
effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
For purposes of this Section, the term "Voting Securities" shall mean
and include any securities of the Company which vote generally for the election
of directors.
Section 9(e)(4) shall be deleted and replaced in its entirety by the following:
(4) Three additional elements of Good Reason shall be
added as follows:
(6) 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.
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(7) 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.
(8) The taking of any action by Company at the
request of or on behalf of any person, after
the occurrence of a Potential Change in
Control, but prior to a Change in Control,
terminating this Agreement or terminating
Employee other than for Cause; provided
that, for purposes of this subparagraph
only, cause shall include willful and gross
misconduct on Employee's part that is
materially and demonstratively detrimental
to the Company.
Section 9(g) shall be deleted and replaced in its entirety by the following:
(g) EFFECT OF TERMINATION; SPECIAL SEVERANCE BENEFITS
If Employee is entitled to receive a special severance benefit pursuant
to Section 9(b) hereof, Company will provide Employee with the following special
severance benefits:
(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) the greatest of 2.5 times:
(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 Employee's
current target bonus under
the Management Incentive Plan
currently in effect, or if no
management incentive program
is currently in effect, the
Employee's
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target bonus under the most
recently completed Management
Incentive Plan year.
(2) The benefits provided by Sections 8(b)(3) and 8(b)(4)
shall be provided for 30 months following Employee's
Termination Date rather than for the period specified
in Section 8(c). In lieu of all fringe benefits other
than those referred to in Sections 8(b)(3) and (4),
Employee shall receive a lump sum payment equal to
20% of Employee's Base Salary as set forth in Section
3 as it may be increased from time to time.
(3) Any stock options to purchase Common Stock of Company
or stock appreciation rights relating to Common Stock
of Company held by Employee on the Notice Date, which
are not at the Notice Date currently exercisable and
which do not become exercisable pursuant to Section
8(b)(5), shall on the Notice Date automatically
become exercisable and shall remain exercisable for
90 days thereafter.
(4) All shares of Common Stock of Company held by
Employee under any Restricted Stock Plan which on the
Notice Date are subject to restrictions which do not
lapse pursuant to Section 8(b)(6) shall, as of that
date, automatically become free of all restrictions.
Company shall amend, if necessary, any option or restricted stock agreements
entered into between Company and Employee to be consistent with paragraphs (3)
and (4).
Except as set forth in this Amendment, the provisions of the Agreement shall
continue in full force and effect.
XXX XXXX CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
Its: Senior Vice President
Date: April 27, 2001
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Date: April 27, 2001
