EXHIBIT 10.186
SECOND AMENDMENT TO AGREEMENT
THIS SECOND AMENDMENT to the Agreement (the "Amendment") is entered
into as of September 30, 1999, by and between CATALINA LIGHTING, INC., a Florida
corporation (the "Company") and Xxxxx X. Xxxxxxx (the "Employee").
RECITALS:
A. The Company and the Employee entered into an Agreement, dated May 7,
1998, which was subsequently amended by addendum dated March 3, 1999, and then
amended and restated on June 4, 1999, and then amended on July 26, 1999, to
provide for severance benefits to the Employee (collectively, the "Agreement").
B. The Company and the Employee wish to enter into this Second
Amendment in order to further amend the terms of the Agreement.
1. A new Section 10 shall be added to the Agreement to read as follows:
"10. CONSULTING AGREEMENT. In the event that the Executive's
employment with the Company terminates for any reason within one (1)
year following a Change in Control, then the Executive shall have the
option, for thirty (30) days after the date of such termination of
employment, to enter into a two (2) year consulting agreement (the
"Consulting Agreement") with the Company, in the form attached as
Exhibit A hereto, which shall take effect as of the date it is
executed and delivered to the Company."
2. A new Section 11 shall be added to the Agreement to read as follows:
"11. CERTAIN REDUCTION OF PAYMENTS BY THE COMPANY.
(a). Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of the Employee,
whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise (a "Payment"), would be
nondeductible by the Company for Federal income tax purposes because of
Section 280G of the Code, then the aggregate present value of amounts
payable or distributable to or for the benefit of the Employee pursuant
to this Agreement (such payments or distributions pursuant to this
Agreement are hereinafter referred to as "Agreement Payments") shall be
reduced to the Reduced Amount. The "Reduced Amount" shall be an amount
expressed in present value which maximizes the aggregate present value
of Agreement Payments without
causing any Payment to be nondeductible by the Company because of
Section 280G of the Code. For purposes of this Section 11, present
value shall be determined in accordance with Section 280G(d)(4) of the
Code. For purposes of this Section 11, the terms "Payment" and
"Agreement Payments" shall not include any payments required to be made
to the Employee pursuant to the Consulting Agreement (as defined in
Section 10 hereof), and any payments pursuant to the Consulting
Agreement shall be disregarded in making any determinations, and thus
shall not be subject to any reductions or cause any Payments to be
reduced, pursuant to this Section 11.
(b) All determinations required to be made under this Section
11 shall be made by Deloitte & Touche LLP or, at the Company's option,
any other nationally recognized firm of independent public accountants
selected by the Employee and approved by the Company, which approval
shall not be unreasonably withheld or delayed (the "Accounting Firm"),
which shall provide detailed supporting calculations both to the
Company and the Employee as of the date on which the Acquisition of
Control occurs or such other time as is requested by the Company. Any
such determination by the Accounting Firm shall be binding upon the
Company and the Employee. The Employee shall determine which and how
much of the Payments shall be eliminated or reduced consistent with the
requirements of this Section 11, provided that, if the Employee does
not make such determination within ten business days of the receipt of
the calculations made by the Accounting Firm, the Company shall elect
which and how much of the Payments shall be eliminated or reduced and
shall notify the Employee promptly of such election. All fees and
expenses of the Accounting Firm incurred in connection with the
determinations contemplated by this Section 11 shall be borne by the
Company."
3. In all other respects, the Agreement shall remain unchanged by this
Amendment.
IN WITNESS WHEREOF, the Company and the Executive have caused this
instrument to be executed the day and year first above written.
CATALINA LIGHTING, INC., A FLORIDA
CORPORATION
Dated: 10/1/99 By: /s/ XXXXXX XXXXX
-------------------------------------------
Xxxxxx Xxxxx, Chairman, President and Chief
Executive Officer
EXECUTIVE:
/s/ XXXXX X. XXXXXXX
-------------------------------------------
XXXXX X. XXXXXXX
2
