EXHIBIT 10.28
MODIFICATION AND RESTATEMENT OF AMENDMENT NO. 5 TO THE
EMPLOYMENT AGREEMENT DATED AS OF APRIL 20, 1994
BETWEEN XXXXX X. XXXXX AND XXXXXXXXX'X, INC.
The Employment Agreement (the "Agreement") dated as of April 20, 1994
between Xxxxx X. Xxxxx (the "Executive") and Xxxxxxxxx'x, Inc., a Delaware
corporation (the "Company") is hereby amended as follows:
1. Section 2.02 of the Agreement shall be modified and restated to read
in its entirety as follows:
Section 2.02 Incentive Compensation
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The following annual incentive compensation plan will be provided to the
Executive for fiscal 1996 and, if approved by the Company's stockholders at
their 1997 annual meeting, for fiscal 1997 and through the term of this
Agreement (subject to reapproval by the Company's stockholders when
required to qualify the annual incentive compensation plan described in
this section as "performance-based" compensation under Internal Revenue
Code Section 162(m)).
(A) Formula for Determining. In addition to his Base Salary, the
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Company shall pay to the Executive as incentive compensation ("Incentive
Compensation"), in respect of each fiscal year of the Company or portion
thereof included within the Employment Period, a cash bonus determined as
follows:
(1) The Compensation Committee of the Board of Directors, in
consultation with the Executive, shall establish annually, and shall
communicate to the Executive prior to the beginning of each fiscal year of
the Company, one or more corporate goals. Each corporate goal shall (x)
relate to the Company's financial or operational performance, (y) be
measured by any method or combination of methods deemed by the Compensation
Committee to be fair and equitable and (z) have assigned to it a numerical
percentage which, when added together, total an aggregate of 50% (the
"Incentive Percentage").
(2) The Executive shall be entitled to receive Incentive
Compensation equal to the product obtained by multiplying the amount of
Base Salary earned during the relevant fiscal year by the sum of
percentages assigned to the corporate goal(s) achieved during such fiscal
year. The Executive shall also be entitled to earn Incentive Compensation
(without duplication) in a lesser or greater amount than the Incentive
Percentage as follows: (i) if 80% of the performance required to achieve
any corporate goal is achieved, then 50% of the percentage assigned to such
goal shall be used in performing the calculation under the immediately
preceding sentence; (ii) for each additional 1% of actual performance
achieved between 80% and 100% of the performance required to
achieve any corporate goal, there shall be added to 50% an additional 2.50%
to arrive at the percentage assigned to the goal in performing the
calculation under the immediately preceding sentence; and (iii) if greater
than 100% of the performance required to achieve any corporate goal is
achieved, then for each 1% of actual performance over 100% of the
performance required to achieve such goal the percentage assigned to such
goal shall be increased by 2.50% to arrive at the percentage assigned to
the goal in performing the calculation under the immediately preceding
sentence; provided, however, that the maximum percentage assigned to any
corporate goal in performing the calculation under the immediately
preceding sentence shall not exceed 200% of the percentage initially
assigned to such goal and the total Incentive Compensation payable in any
year shall not exceed 100% of Base Salary. Notwithstanding the foregoing,
the Compensation Committee in its sole discretion may increase Incentive
Compensation if the effect of the foregoing "proviso" is to place a
limitation on the amount payable in respect of any corporate goal. The
corporate goal(s) shall be established so that the Executive will have a
reasonable opportunity, through diligent performance of his duties, to earn
Incentive Compensation.
(3) Incentive Compensation for any fiscal year shall not exceed
$1,250,000 regardless of the amount of Base Salary or the results of the
calculations described above.
(B) Time of Payment; Proration. The amount of Incentive Compensation
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earned hereunder shall be determined by the Compensation Committee as soon
as reasonably practicable following the end of each fiscal year of the
Company and shall be paid promptly thereafter to the Executive. When
computing the amount of Incentive Compensation payable for periods of
employment of less than one full fiscal year, the percentages established
pursuant to Section 2.02 (A)(2) shall be applied to the actual amount of
Base Salary earned during the relevant period.
2. Capitalized terms herein shall have the meanings ascribed to them in
the Agreement. Except as amended hereby, the remaining provisions of the
Agreement, as amended to date, shall remain in full force and effect.
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IN WITNESS THEREOF, the Executive and the undersigned duly authorized
officer of the Company have executed and delivered this Modification and
Restatement of Amendment No. 5 to the Employment Agreement Dated as of April 20,
1998 between Xxxxx X. Xxxxx and Xxxxxxxxx'x, Inc., as of December 18, 1997.
XXXXXXXXX'X, INC.
BY: /s/ C. Xxxxxxx Xxxxxx
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C. Xxxxxxx Xxxxxx
Executive Vice President, General
Counsel and Corporate Secretary
Xxxxx X. Xxxxx
/S/ Xxxxx X. Xxxxx
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