EXHIBIT 10.9
EXECUTION COPY
FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT
This First Amendment (this "FIRST AMENDMENT") to the Employment
Agreement (the "EMPLOYMENT AGREEMENT"), dated as of June 29, 1999, by and
between Gulf Wide Industries, L.L.C., a Louisiana limited liability company (the
"COMPANY") and Xxxx X. Xxxxxxxx (the "EMPLOYEE"), is dated as of August 10,
2001. As provided in Section 10.07 of the Employment Agreement, Head & Xxxxxxxx
Equipment, L.L.C., a Louisiana limited liability company and a wholly-owned
subsidiary of the Company ("HEAD & XXXXXXXX") has guaranteed the performance and
payment by the Company of all obligations of the Company to Employee under the
Employment Agreement. Each capitalized term which is used and not otherwise
defined in this First Amendment has the meaning given to such term in the
Employment Agreement.
1. AMENDMENTS TO THE EMPLOYMENT AGREEMENT.
(a) TERM. The phrase "expiring on the fifth anniversary of the
Effective Date" where used in the first sentence of Section 1.02 of the
Employment Agreement is hereby deleted and the following is substituted
therefore: "expiring on December 31, 2006".
(b) BASE SALARY. The first sentence of Section 3.01 of the Employment
Agreement is hereby amended to read as follows:
"Employee shall be paid base salary (the "BASE SALARY") of
$300,000 per annum, to be increased on January 1 of each year
occurring on or prior to January 1, 2001 by an amount equal to 5%
of the Base Salary for the prior year and to be increased on
August 1, 2001 to $500,000 per annum, in each case, less
deductions and withholdings required by applicable law."
(c) BONUS. Section 3.02 of the Employment Agreement is hereby amended
to read as follows:
"After each calendar year of the Company during the Term,
Employee shall be eligible to receive a cash bonus ("BONUS") of
up to $500,000, which cash bonus shall be determined by the
Company's Board of Directors consistent with the terms of this
Section 3.02, based upon the attainment by the Company of the
Company's applicable performance targets for such calendar year;
PROVIDED, that, notwithstanding the foregoing, Employee's Bonus
for calendar year 2001 shall be based upon the Company's EBITDA
for such calendar year 2001 in the following manner: (x) if the
Company's EBITDA for calendar year 2001 is greater than or equal
to $58,700,000, then the Bonus for calendar year 2001 shall be
equal to $500,000, (y) if the Company's EBITDA for calendar year
2001 is less than $52,830,000, then the Bonus for calendar year
2001 shall be zero and (z) if the Company's EBITDA for calendar
year 2001 is equal to or greater than $52,830,000 and less than
$58,700,000, then the Bonus for calendar year 2001 shall be equal
to (i) $250,000 PLUS (ii) $250,000 MULTIPLIED BY P%, where "P%"
is
equal to (A) the Company's EBITDA for calendar year 2001 MINUS
$52,830,000 DIVIDED BY (B) $5,870,000; PROVIDED, FURTHER, that,
notwithstanding the foregoing, with respect to any calendar year
of the Company during the Term which occurs after calendar year
2001, (xx) if the Company achieves its applicable performance
targets for such calendar year, then Employee's Bonus for such
calendar year shall be equal to $500,000, (yy) if the Company
achieves less than 90% of its applicable performance targets for
such calendar year, then Employee's Bonus for such calendar year
shall be zero and (zz) if the Company achieves 90% or more but
less than 100% of its applicable performance targets for such
calendar year, then Employee's Bonus for such calendar year shall
be (I) $250,000 PLUS (II) $250,000 MULTIPLIED BY Q%, where "Q%"
is equal to (AA) the percentage of the applicable performance
targets for such calendar year achieved by the Company (expressed
as a decimal) MINUS 0.90 DIVIDED BY (BB) 0.10. For purposes of
this Section 3.02, the term "EBITDA" means, with respect to any
calendar year under consideration, an amount equal to (a)
consolidated gross profits from sales of the Company for such
calendar year, minus selling, general and administrative
expenses, plus (b) the sum of (1) any provision for interest
expense, and (2) the amount of non-cash charges (including
depreciation and amortization) for such calendar year as shown on
the books and records of the Company. EBITDA shall in no event
include any provision for income taxes, interest income, or any
gains or losses from extraordinary items of the Company for such
calendar year."
(d) TERMINATION OF EMPLOYMENT. Clauses (c) and (d) of Article VI of
the Employment Agreement are hereby amended to read as follows:
"(c) (i) voluntary termination by Employee of Employee's
employment hereunder due to a Constructive Termination (as herein
defined) or (ii) termination by the Company of Employee's
employment hereunder, upon 10 days prior written notice to
Employee, for any reason other than as a result of a Good Cause
Termination Event or Disability Termination Event (a "NO CAUSE
TERMINATION EVENT"); or
(d) voluntary termination by Employee of Employee's employment
hereunder other than due to a Constructive Termination (a
"VOLUNTARY TERMINATION EVENT"). For purposes of this Agreement, a
"CONSTRUCTIVE TERMINATION" shall mean, without Employee's consent
(i) the material breach by the Company of any of its material
obligations under this Agreement, provided that such breach is
not cured within 30 days after written notice by Employee to the
Company's Board of Directors that such breach has occurred and
will serve as cause for constructive termination, (ii) the
Company's requirement, as a condition to Employee's continued
employment, that Employee permanently be assigned to perform
duties at a place located more than 30 miles from Baton Rouge,
Louisiana, or (iii) the material reduction or diminution by the
Company's Board of Directors of the duties, responsibilities or
authority of the Employee, provided that such action is not cured
within 30 days after written notice by Employee to the Company's
Board of Directors that such event has occurred and will serve as
cause for constructive termination."
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(e) TERMINATION AS RESULT OF NO CAUSE TERMINATION. Section 7.03 of the
Employment Agreement is hereby amended to read as follows:
"If Employee's employment hereunder is terminated as a result of
the occurrence of a No Cause Termination Event, then Employee
shall be entitled to receive (i) all Base Salary through the date
of termination and any accrued and unpaid Bonus for any calendar
year which ended prior to the date of termination, (ii) a portion
of the Bonus that would accrue at the end of the calendar year in
which such termination occurs, determined pro rata based upon the
Company's actual performance and applicable performance targets
during the period beginning on the first day of such calendar
year and ending on the date of such termination, (iii) severance
payments in an aggregate amount equal to one year of his Base
Salary PLUS an amount equal to his most recent annual Bonus,
without regard to any pro ration (which shall be paid in equal
monthly installments over the one year period commencing on the
date of such termination) subject, in each case, to withholding
and other appropriate deductions. In addition, the Company shall
provide medical insurance substantially similar to the medical
insurance provided to Employee prior to the termination of his
employment for the three consecutive months immediately following
such termination."
2. THE EMPLOYMENT AGREEMENT. In all other respects the Employment
Agreement is ratified and shall, as so changed by this First Amendment, continue
in full force and effect.
3. GUARANTEE. Head & Xxxxxxxx hereby guarantees the performance and
payment by the Company of all obligations of the Company to Employee under the
Employment Agreement, as amended by this First Amendment.
4. COUNTERPARTS. This First Amendment may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
5. GOVERNING LAW. This First Amendment shall be governed and
construed in accordance with the same laws as the Employment Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to the Employment Agreement.
GULF WIDE INDUSTRIES, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
HEAD & XXXXXXXX EQUIPMENT, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
