EXHIBIT 10.21(A)
AMENDMENT TO
EMPLOYMENT AGREEMENT
--------------------
AMENDMENT, dated 31st day of October, 2002 to the Employment
Agreement, dated as of August 15, 2001 by and between Xxxxxx A.S.L., Ltd., a
Delaware corporation (the "Company"), and Xxxx X. Idol (the "Executive").
WHEREAS, the Company and the Executive previously entered into the
Employment Agreement, and
WHEREAS, the Employment Agreement was amended as of March 18, 2002;
and
WHEREAS, the Company and the Executive wish to further amend the
Employment Agreement (as amended on March 18, 2002) as set forth below.
NOW, THEREFORE, for good and valuable consideration, the parties
hereto agree as follows (all terms used but not defined herein having the
respective meanings set forth in the Employment Agreement):
1. Section 5(a) of the Employment Agreement is hereby
amended, in its entirety, to read as follows:
a. Restricted Stock. As of the effective date (the
"Emergence Date") of the Company's plan of reorganization under the
Bankruptcy Code (the "Plan"), the Company shall issue to the
Executive restricted shares of its common stock (rounded up to the
nearest whole share) having a value, based upon the "Ascribed Value"
(as hereinafter defined) of the Company's stock: (i) equal to one
million dollars ($1,000,000) (in satisfaction of the promissory note
issued to the Executive as of August 15, 2002), plus (ii) two and
one-half percent (2 1/2%) of the number of shares issued under the
Plan of reorganization, including the shares to be issued to the
Executive in clause (i) above and hereunder. One-half (50%) of the
shares shall vest on the second (2nd) anniversary of the Emergence
Date and twenty-five percent (25%) shall vest on each of the third
and fourth anniversaries of the Emergence Date; provided in each
case, that, at least once commencing on or after the Emergence Date,
for a period of twenty (20) consecutive trading days, the closing
sales price of a share of such stock is at least one hundred and
fifty percent (150%) of the Ascribed Value. All shares so issued
shall be nontransferable by the Executive until they are vested,
provided that the Executive shall be entitled to receive all
dividends paid on such shares and shall be entitled to vote them. Any
shares that are not vested shall become vested (and the Executive
shall own the shares outright) on the date of the Executive's death,
Total Disability, termination without Cause or resignation for Good
Reason, or upon a Change in Control of the Company, or on the tenth
(10th) anniversary of the date the shares are issued. All other terms
of the restricted stock shall be consistent with the terms of the
Company's stock plan, as in effect on the Emergence Date. The term
"Ascribed Value", as used herein, shall mean the value ascribed to
shares of the common stock of the Company for purposes of issuing and
distributing its common stock on the Emergence Date pursuant to the
Plan.
2. Section 5(b) of the Employment Agreement is hereby
amended, in its entirety, to read as follows:
b. Options. As of Emergence Date, the Company shall grant
the Executive options to purchase shares of the Company's common
stock (on a fully diluted basis) equal to two and one-half percent (2
1/2%) of the total number of shares issued under the Plan, including
the shares issued to Executive pursuant to clause 1(a)(i) above. The
per share exercise price under the options shall be an amount equal
to $80,000,000.00 divided by the total number of shares issued under
the Plan, irrespective of the Ascribed Value. The options shall vest
and become exercisable ratably on the first four (4) anniversaries of
the Emergence Date, provided that: (A) (i) the Executive is employed
on such date and (ii) at least once during the period beginning on or
after the Emergence Date, for a period of twenty (20) consecutive
trading days, the closing sales price of a share of such stock is at
least one hundred and fifty percent (150%) of Ascribed Value, and (B)
if earlier, the options shall fully vest on the date of the
Executive's death, Total Disability, termination of employment
without Cause, or resignation for Good Reason or upon a Change in
Control or on the tenth (10th) anniversary of the date the options
are issued. The non-vested portion of such options shall be forfeited
and cancelled on Executive's termination of employment for Cause or
voluntary termination other than for Good Reason. All outstanding
options (including vested options) shall terminate on the first
anniversary of the Executive's death or Total Disability or on the
ninetieth (90th) day following any other termination of employment.
All other terms of the options shall be consistent with the terms of
the Company's stock plan, as in effect on the Emergence Date.
3. A new Section 5(c) is hereby added to the Agreement, to
read as follows:
(c) Sale Bonus. Notwithstanding anything herein to the
contrary, in the event a Change in Control occurs, in a transaction
which is subject to Bankruptcy Court approval and which has been
approved by a final order of the Bankruptcy Court which order is no
longer subject to appeal and as to which no appeal is pending (the
"Transaction"), before the restricted shares and stock options
contemplated by Sections 5(a) and 5(b) above are issued to the
Executive, on the date of such Change in Control, he shall be
entitled, in lieu of the restricted shares and stock options set
forth in Sections 5(a) and 5(b) above, to: (i) a lump sum payment
equal to one million dollars ($1,000,000) plus accrued interest in
cash (in full satisfaction of the promissory note issued to the
Executive on August 15, 2002), plus (ii) an amount equal to two and
one-half percent (2 1/2%) of the "Distributable Amount", as
hereinafter defined, plus (iii) an amount equal to two and one-half
percent (2 1/2%) of the amount by which the Distributable Amount
exceeds eighty million dollars ($80,000,000). Notwithstanding the
foregoing, for purposes of clauses (ii) and (iii) above only, no
Change in Control of the Company shall be deemed to have occurred by
virtue of any transaction which results in you, or any group,
association or other organization of persons related to, including,
or acting in concert with you ("Related Persons"), acquiring,
directly or indirectly, any interest in the Company which would
otherwise constitute a Change of Control. Further, the restriction in
the preceding sentence shall apply in the event of your employment
by, or any other business affiliation with, any such Related Persons
or the Company after such Change of Control for a period of 12 months
following such Change of Control.
As used herein, the term "Distributable Amount" shall mean
the aggregate amount (in cash, stock or property) which, by virtue of
a Transaction, will be available for distribution under the Plan in
satisfaction of all "Senior Notes Claims", "General Unsecured Claims"
and "Convenience Claims" (as such terms are defined in the Plan). For
purposes of clauses 5(c)(ii) and (iii) as amended hereby, the
Executive shall receive such value in the same form (i.e. cash or
stock or a combination thereof) as do the holders of the Senior Notes
Claims and General Unsecured Claims in accordance with the Plan.
4. This Amendment shall be effective on the date the
United States Bankruptcy Court with jurisdiction over the Chapter 11
debtor case of Xxxxxx A.S.L., Ltd. approves and enters an order
authorizing the Company to enter into this Agreement (the "Effective
Date"). Upon the Effective Date, (i) the letter agreement dated March
28, 2002 amending the Employment Agreement shall be terminated and of
no further force or effect and (ii) the Employment Agreement, as
modified by this Amendment, shall remain in full force and effect.
2
5. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but both of which together shall
constitute the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as
of the date first written above.
XXXXXX A.S.L., LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
/s/ Xxxx X. Idol
-------------------------------------
XXXX X. IDOL
3
