EXHIBIT 10.05
THIRD AMENDMENT
TO EMPLOYMENT AGREEMENT
DATED NOVEMBER 19, 1993
Reference is made to the Executive Employment Agreement
dated as of November 19, 1993 as amended by an Amendment dated
February 8, 1995 and a second Amendment dated April 25, 1995 (the
"Agreement") by and between X. Xxxxx, Inc. and Xxxxxx X. Xxxxxxxx.
Pursuant to paragraph 19 of the Agreement and in order to further
amend certain provisions of the Agreement, the Agreement is further
amended as follows:
1. Paragraph 9 of the Agreement is hereby amended by
adding the following two subparagraphs:
"(e) Without Cause. Notwithstanding the provisions of
subparagraph (d) hereof, during the Term hereof and prior to any
Change of Control of the Company, the Company may terminate this
Agreement at any time without cause. In such event, the Company
shall pay to the Employee, in accordance with the Company's regular
pay intervals for its senior executives, an amount equal to the
greater of (i) the amount of Base Salary the Employee would have
received through the last day of the Term or (ii) one (1) year of
Base Salary.
(f) Change of Control/Change of Management. (i) In the
event the Employee's employment with the Company is terminated (A)
by the Company or (B) by the Employee for "good reason" within
three (3) years after a Change in Control of the Company occurring
during the Term hereof (regardless of whether such Employee's
termination occurs after the expiration of the Term), or (ii) in
the event the Employee's employment is terminated (C) by the
Company (except if such termination is for "cause" as defined in
subparagraph 9(c) hereof) or (D) by the Employee for good reason
within three (3) years after the employment of any of Messrs.
Xxxxx, Xxxxxxxxx or Xxxxx, respectively, with the Company has
terminated during the Term hereof for any reason including, without
limitation, dismissal, resignation, retirement, death or
termination for any other reason, then, in such event, the Company
shall pay to the Employee an amount, in cash, (the "Severance
Payment") equal to the greater of (i) the amount of Base Salary the
Employee would have received through the last day of the Term or
(ii) one (1) year of Base Salary. For purposes of this Agreement
"Base Salary" shall mean the Employee's Base Salary as set forth in
paragraph 3 of this Agreement, as such Base Salary may be increased
from time to time. If any of the termination events set forth in
this subparagraph (f) shall occur during the Term hereof or other
applicable time periods, the provisions of subparagraph (d) hereof,
if applicable, shall be superseded by the provisions of this
subparagraph (f) and the provisions of paragraph 7 hereof shall be
null and void and have no further force or effect.
(g) A termination for "good reason" shall be deemed to
have occurred, and the Employee shall be entitled to the benefits
set forth in this paragraph 9, if the Employee voluntarily
terminates his employment after the occurrence of any of the
following events, if either the circumstances set forth in
paragraphs (f)(i) or (f)(ii) has occurred: (i) the assignment
to the Employee of any duties inconsistent with the highest
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities attained by
the Employee during the period of his employment by the Company;
(ii) a relocation of the Employee outside the metropolitan
Columbus, Ohio area; or (iii) a decrease in the Employee's
compensation (including base salary, bonus or fringe benefits).
For purposes hereof, "Change of Control of the Company" shall have
the meaning set forth in the Company's 1994 Equity Incentive Plan,
as approved by the Stockholders of the Company on June 7, 1994 (and
without regard to any subsequent amendments thereto).
(h) In the event the Employees's employment is
terminated as described in Paragraph 9(f)(i) above, the Severance
Payment shall be made to the Employee in a single lump sum cash
payment. In the event the Employees's employment is terminated as
described in Paragraph 9(f)(ii) above, the Severance Payment shall
be made to the Employee in accordance with the Company's regular
pay intervals for its senior executives beginning immediately
following the Employee's termination of employment with the
Company.
2. All other terms of the Agreement shall remain
unchanged and continue in full force and effect.
X. XXXXX, INC.
/s/ Xxxxx X. Xxxxx November 26, 1995
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By: Xxxxx X. Xxxxx Date
President and
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx November 26, 1995
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Xxxxxx X. Xxxxxxxx Date
