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EXHIBIT 10.4(d)
Amendment effective February 6, 1998,
amending the Form of Severance Agreement
between the Registrant and Xxxxxxx Xxxxx,
dated as of June 3, 1986, as amended.
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AMENDMENT TO
SEVERANCE AGREEMENT
WHEREAS, Xxxxxxx Xxxxx (the "Executive") and Xxxxxx General
Corporation, a Delaware corporation (the "Company"), entered into a Severance
Agreement as of June 3, 1986, as amended as of January 23, 1996 (the
"Agreement"); and
WHEREAS, the Executive and the Company wish to amend the
Agreement in certain respects;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the Executive and the Company agree
that the Agreement shall be amended, effective as of February 6, 1998, as set
forth herein.
Unless otherwise defined herein, capitalized terms used herein
shall have the meaning ascribed to such terms in the Agreement.
1. Section 2(i) of the Agreement is hereby amended and
restated to read as follows:
(i) No benefits shall be payable hereunder unless there shall
have been a change in control of the Company, as set forth below. For
purposes of this Agreement, a "change in control of the Company" shall
mean a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), whether or not the Company is in fact required to
comply therewith, provided that, without limitation, such a change in
control shall be deemed to have occurred if (A) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding securities (such event, a "50% Event"); or (B) during
any period of two consecutive years (not including any period prior to
the original execution of this Agreement), individuals who at the
beginning of such period constitute the Board and any new director
(other than (i) any director designated by a person who has entered
into an agreement with the Company to effect a transaction described in
clauses (A)
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or (C) of this Subsection and (ii) any director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose election by
the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) 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 (C)
the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
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 60% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company
of all or substantially all the Company's assets. Notwithstanding the
foregoing, the occurrence of a 50% Event shall not, of itself,
constitute a change in control of the Company for purposes of the
preceding sentence if, within 30 days after the occurrence of such 50%
Event, such "person's" beneficial ownership of securities of the
Company decreases to less than 50% of the combined voting power of the
Company's then outstanding securities; provided, however, if your
employment is terminated by the Company without Cause while the 50%
Event continues in effect during such 30-day period, the foregoing
provisions of this sentence shall be null and void and of no effect,
and the determination of whether a change in control has occurred shall
be made without reference to the foregoing provisions of this sentence.
2. Section 3(iii)(A) of the Agreement is hereby amended and
restated to read as follows:
(A) the assignment to you of any duties inconsistent
with your status as President or a substantial adverse alteration in the nature
or status of your responsibilities from those in effect immediately prior to the
change in control of the Company;
3. Section 3(iii)(B) of the Agreement is hereby amended and
restated to read as follows:
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(B) a reduction by the Company in your annual cash
compensation to an amount less than the sum of (x) your annual salary
rate in effect immediately prior to the change in control of the
Company, plus either (y) from and after the date on which the
individuals who, immediately prior to the change in control of the
Company, constituted the Board do not constitute a majority of the
Board, an amount equal to the average of your bonuses (including awards
under the Executive Incentive Program and any other annual incentive
program that may be in effect) earned for the three years prior to the
change in control of the Company, or (z) during the period in which the
individuals who, immediately prior to the change in control of the
Company, constituted the Board continue to constitute a majority of the
Board, an amount equal to 50% of the average of your bonuses (including
awards under the Executive Incentive Program and any other annual
incentive program that may be in effect) earned for the three years
prior to the change in control of the Company.
Except as amended hereby, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by a duly authorized officer of the Company, and Executive has
executed this Amendment, on this ____ day of _________, 1998, effective as of
February 6, 1998.
XXXXXX GENERAL CORPORATION
By:
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Name: Xxx X. Xxxxxxx
Title: Chief Executive
Officer
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Xxxxxxx Xxxxx
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