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Exhibit 10.3
AMENDMENT TO CHANGE IN CONTROL AGREEMENT
THIS AMENDMENT is made effective as of the 24 day of September, 1999,
by and between XXXXXXX PIANO & ORGAN COMPANY, a Delaware corporation (the
"Company") and XXXXX X. XXXXXX (the "Executive").
WHEREAS, the parties entered into a Change of Control Agreement, dated
July 5, 1998 (the "Change of Control Agreement"), and desire to amend the Change
of Control Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein, the parties agree as follows:
1. Amendments to SECTION IV. BENEFITS UPON TERMINATION FOLLOWING
A CHANGE IN CONTROL.
(a) Subsection 1. Termination. THE FIRST SENTENCE SHALL
BE DELETED IN ITS entirety and replaced with the
following:
1. TERMINATION - The Executive shall be entitled to,
and the Company shall pay or provide to the Executive, the
benefits described in Section 2 below if (a) a Change in
Control occurs during the term of this Agreement, and (b) the
Company terminates the Executive's employment, either by
actual termination or by constructive termination, within two
(2) years following the Change in Control or the Company
terminates the Executive within forty-five (45) days prior to
a Change in Control, other than termination for Cause.
(b) SUBSECTION 2(a). COMPENSATION. Subsection 2(a) shall
be deleted in its entirety and replaced with the
following:
2(a) COMPENSATION - The Executive will receive an
amount equal to two times the Executive's Average Annual
Compensation in twenty-four (24) equal monthly installments,
beginning with the first month following the Executive's date
of termination, in the same manner as the Executive's salary
was being paid as of the date of termination, subject to
withholding of all applicable taxes and any amounts referred
to in Section 2(b) below; provided, however, that, at the
option of the Executive, the payments provided for hereunder
shall be paid in a single lump sum payment, to be paid not
later than thirty (30) days after the Executive's termination
of employment, provided further, that the amount of such lump
sum payment shall be determined by taking the compensation
payments to be made and discounting them to their Present
Value.
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2(b) HEALTH AND LIFE INSURANCE COVERAGE - The health
and life insurance benefits coverage provided to the Executive
at the Executive's date of termination shall be continued at
the same level and in the same manner as if the Executive's
employment had not terminated (subject to the customary
changes in such coverages if the Executive retires, reaches
age 65 or similar events), beginning on the date of such
termination and ending on the earlier of (i) the date
twenty-four (24) months from the date of such termination and
(ii) the date that the Executive becomes eligible for health
insurance benefits offered by any subsequent employer, taking
into account any exclusion or waiting period in such
subsequent employer's health benefit plan. Any additional
coverages the Executive had at termination, including
dependent coverage, will also be continued for such period at
the same level and on the same terms as provided to the
Executive immediately prior to the Executive's termination, to
the extent permitted by the applicable policies or contracts.
Any costs Executive was paying for such coverages at the time
of termination shall be paid by the Executive by separate
check payable to the Company each month in advance. If the
terms of any benefit plan referred to in this Section do not
permit continued participation by the Executive, then the
Company will arrange for other coverage at its expense
providing substantially similar benefits as it can find for
other officers in similar positions.
2(c) EMPLOYEE RETIREMENT PLANS - To the extent
permitted by the applicable plan, the Executive will be fully
vested in and will be entitled to continue to participate,
consistent with past practices, in all employee retirement
plans maintained by the Company in effect as of the
Executive's date of termination. The Executive's participation
in such retirement plans shall continue for a period beginning
on the date of the Executive's termination and ending on the
earlier of (i) the date twenty-four (24) months from the date
of such termination and (ii) the date that the Executive
becomes employed by any other employer (at which point the
Executive will be considered to have terminated employment
within the meaning of the plans) and the compensation payable
to the Executive under paragraph (a) above shall be treated
(unless otherwise excluded) as compensation under the plan. If
full vesting and continued participation in any plan is not
permitted, the Company shall pay to the Executive and, if
applicable, the Executive's beneficiary, a supplemental
benefit equal to the Present Value on the date of termination
of employment of the excess (i) the benefit the Executive
would have been paid under such plan if the Executive had been
fully vested and had continued to be covered for the 24-month
period as if the Executive had earned compensation described
under paragraph (a) above and had made contributions
sufficient to earn the maximum matching contribution, if any,
under such plan (less any amounts the Executive would have
been required to contribute), over (ii) the benefit actually
payable to or on behalf of the Executive under such plan. For
purposes of determining the benefit under (i) in the preceding
sentence, contributions deemed to be made under a defined
contribution plan will be deemed to be invested in the same
manner as the Executive's account under such plan at the time
of termination of employment. The Company shall pay such
supplemental benefits (if any) in a lump sum.
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2(d) ACCELERATED VESTING SCHEDULES - All stock
options and the unvested portion of all grants of restricted
stock granted to the Executive shall immediately vest in full.
Moreover, the Executive shall be entitled to receive
immediately upon such termination the cash value of any long
term incentives payable to the Executive under any long term
incentive compensation plans, including but not limited, to
the Company's 1994 Long Term Incentive Plan, in which the
Employee is then participating calculated as of the date of
the Executive's termination regardless of any provisions in
such plans requiring continued employment with the Company.
If, within thirty (30) days of Executive's Termination of
Employment, the Executive informs the Company that the
Executive desires to exercise any or all of the stock options
granted which have vested (including such options which have
vested pursuant to this paragraph (d)) immediately prior to
the Executive's termination of employment, then the Company in
its sole discretion shall either (a) register the underlying
shares of the Company's common stock for sale to the public
pursuant to a registration statement filed by the Company with
the Securities and Exchange Commission within 180 days of the
termination of the Executive's employment, or (b) purchase
from the Executive the stock options which the Executive
desires to exercise. If the Company elects to purchase the
stock options, the purchase price to be paid by the Company
for each such option being purchased shall be the difference
between the last sale price of the Company's common stock on
the Nasdaq National Market on the day prior to the date of
termination and the exercise price of the option.
2. NOTICES. The notice address for the Company shall be changed
to:
To the Company: Xxxxxxx Piano & Organ Company
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000-0000
3. REAFFIRMATION - Except as expressly modified in this
Amendment, the Company and the Executive hereby ratify and
confirm each and every provision of the Change of Control
Agreement.
4. SEVERABILITY - If any provision of the Change of Control
Agreement, as amended by this Amendment, is held to be
unenforceable for any reason, the remainder of this Agreement
shall, nevertheless, remain in full force and effect.
5. ENTIRE AGREEMENT - The terms and provision of the Change of
Control Agreement and this Amendment constitute the entire
agreement between the Company and the Executive with respect
to the subject matter hereof. This Amendment may be amended or
modified only by a written instrument executed by the Company
and the Executive.
6. GOVERNING LAW - This Amendment shall be governed in all
respects by the law of the State of Ohio.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXX PIANO & ORGAN COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
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Printed Name: Xxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer
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EXECUTIVE
/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
