MARCH 1997 AMENDMENT TO
AMENDED AND RESTATED HOLDINGS OPTION AGREEMENT
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THIS AMENDMENT ("Amendment") to the Amended and Restated Holdings Option
Agreement by and between Xxxxxx Holdings, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxx (the "Optionee") is made and entered into as
of the 31st day of March, 1997, by and between the Company and the Optionee.
PRELIMINARY STATEMENT
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The Company has previously adopted the Xxxxxx Holdings, Inc. Employee
Stock Option Plan, as amended by that certain First Amendment to the Xxxxxx
Holdings, Inc. Employee Stock Option Plan of even date herewith (as amended,
the "Plan"). The Company granted the Optionee a nonstatutory stock option to
purchase an aggregate of 200,000 shares of the Company's common stock, $.01
par value (the "Common Stock") pursuant to that certain Amended and Restated
Holdings Option Agreement dated as of September 1, 1993, as amended by that
certain January 1996 Amendment to Holdings Option Agreement (as amended, the
"Option Agreement"). The Optionee partially exercised such Option pursuant to
that certain Exercise and Repurchase Agreement, dated as of January 24, 1997,
by and among the Company and certain option holders including the Optionee and
acquired 40,000 shares of the Company's Common Stock which shares were
immediately sold to the Company. The Company and the Optionee now desire to
enter into this Amendment to, among other things, change the duration of the
Option.
AGREEMENT
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In consideration of the mutual covenants contained in this Amendment, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
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the meanings assigned to them in the Option Agreement.
2. Amendments.
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(a) The second sentence of paragraph 1 of the Option Agreement shall
be deleted in its entirety and not replaced.
(b) The third sentence of paragraph 1 of the Option Agreement shall
be amended in its entirety to read as follows:
"The Option, the Option Shares, and this Agreement are
subject to all of the terms, conditions, limitations and restrictions
contained in the Plan and the Amended Stockholders Agreement, dated as of
January 29, 1997, by and among the Company and the Investors listed on the
signature pages thereof, as may be amended from time to time in accordance
with the provisions thereof (the "Stockholders Agreement")."
(c) The first sentence of paragraph 2 of the Option Agreement shall
be amended in its entirety to read as follows:
"Subject to the provisions of Subsection 6(c) of the Plan,
the Option or any portion thereof may be exercised at any time and from time
to time with respect to any Option Shares; provided, however, that in no event
may the Option or any portion thereof be exercised after the earlier of (a)
the date that is three months after your employment with the Company is
terminated, except that this paragraph 2(a) shall not apply in the case of a
termination of the Optionee's employment (x) by the Company without Cause (as
defined herein), (y) due to the death, Disability (as defined in the Plan), or
Retirement (as defined in the Plan) of the Optionee, or (z) by the Optionee
for Good Reason (as defined herein), and (b) September 1, 2003."
(d) The following text shall be added to the end of paragraph 5 of
the Option Agreement:
"The Optionee may pay for such Option Shares in cash or by
certified check, bank draft or money order payable to the order of the
Company. If the exercise of the Option follows the termination of the
Optionee's employment with the Company, and such termination was (a) by the
Company without Cause, (b) due to the death, Disability (as defined in the
Plan), or Retirement (as defined in the Plan) of the Optionee, or (c) by the
Optionee for Good Reason, then the Optionee may also pay for the Option Shares
by executing a full recourse promissory note in favor of the Company in the
form attached hereto as Exhibit A."
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(e) The first sentence of paragraph 7 shall be amended in its
entirety to read as follows:
"7. You agree that any Option Shares acquired at any time
shall be subject to the terms and conditions of the Stockholders Agreement as
the same may be amended from time to time in accordance with the provisions
thereof."
(f) The following text shall be added as paragraph 8 of the Option
Agreement:
"As used herein the following terms shall have the following
meanings:
"Cause" shall mean, the good faith determination by the Board
of Directors of the Company that the Optionee (i) willfully and continually
failed to substantially perform his duties with the Company or Xxxxxx
International, Inc. ("Xxxxxx") (other than a failure resulting from the
Optionee's incapacity due to physical or mental illness) after a written
demand for substantial performance has been delivered to such Optionee by the
Board of Directors of the Company, which demand specifically identifies the
manner in which the Board of Directors believes that the Optionee has not
substantially performed his duties, (ii) has willfully engaged in conduct
which is demonstrably and materially injurious to the Company or Xxxxxx,
monetarily or otherwise or (iii) has engaged in fraud, dishonesty, theft of
corporate assets, or an act or acts constituting a felony under the laws of
the United States or any state thereof. No act, or failure to act, on the
Optionee's part shall be considered "willful" unless he has acted or failed to
act with an absence of good faith and without a reasonable belief that his
action or failure to act was in or at least not opposed to the best interests
of the Company or Xxxxxx, as applicable. Notwithstanding the foregoing, the
Optionee shall not be deemed to have been terminated for Cause unless there
shall have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board of Directors of the Company at a meeting of the Board of Directors of
the Company.
"Good Reason" shall mean without the Optionee's written
consent, (i) a diminution in the Optionee's status, position or
responsibilities (including reporting responsibilities) as in effect
immediately prior to the date of this Amendment, (ii) the assignment to the
Optionee of any duties which are inconsistent with the Optionee's status,
position or responsibilities as in effect immediately prior to the date of
this Amendment, (iii) any removal of the Optionee from, or failure to reelect
or reappoint him to, a position at least as prestigious as the position
occupied by the Optionee immediately prior to the date of this Amendment,
except in connection with the termination of the Optionee's employment with
the Company for Disability, Retirement or Cause, or as a result of the
Optionee's death; (iv) a reduction by the Company or Xxxxxx in the base salary
of the Optionee as in effect immediately prior to the date of this Amendment;
(v) the relocation of the principal executive offices of Xxxxxx to a location
more than thirty (30) miles from its location immediately prior to the date of
this Amendment or the reassignment of the Optionee to a location more than
thirty (30) miles from the location at which the Optionee performed his duties
immediately prior to the date of this Amendment (except for required travel on
the Company's or Xxxxxx' business to an extent substantially consistent with
his business travel obligations immediately prior to the date of this
Amendment); (vi) the adverse and substantial alteration in the material
quality of the office space from that in which the Optionee performed his
duties as in effect immediately prior to the date of this Amendment, including
the size and location thereof, as well as in the secretarial and
administrative support provided to the Optionee; (vii) the failure by the
Company or Xxxxxx to continue in effect any incentive, bonus or other
compensation plan in which the Optionee participates, including but not
limited to Xxxxxx' annual incentive plans, unless an equitable arrangement
(embodied in an ongoing substitute for alternative plan) has been made with
respect to such plan or the failure by the Company or Xxxxxx to continue the
Optionee's participation therein, or any action by the Company or Xxxxxx which
would directly or indirectly materially reduce his participation therein or
reward opportunities thereunder; (viii) the failure by the Company or Xxxxxx
to continue in effect in substantially equivalent form any employee benefit
plan (including any medical, hospitalization, life insurance or disability
benefit plan in which the Optionee participates), or any material fringe
benefit or perquisite enjoyed by the Optionee immediately prior to the date of
this Amendment, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or
the failure by the Company or Xxxxxx, as the case may be, to continue the
Optionee's participation therein, or any action by the Company or Xxxxxx which
would directly or indirectly materially reduce his participation therein or
reward opportunities thereunder; (ix) the failure by the Company or Xxxxxx, as
the case may be, to provide the Optionee with the number of paid vacation days
to which he is entitled on the basis of years of service with Xxxxxx in
accordance with Xxxxxx' normal vacation policy in effect immediately prior to
the date of this Amendment; or (x) a breach of the Option Agreement, this
Amendment, or the Stockholders Agreement."
3. No Other Modification. Other than as specifically set forth in Section
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2 of this Amendment, this Amendment shall not be construed as modifying or
amending any term or provision of any agreement or document including, but not
limited to, the Option Agreement and the Plan. Other than as specifically
modified pursuant to Section 2 of this Amendment, all rights, duties and
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obligations of the parties under the Option Agreement and the Plan shall
continue in full force and effect.
4. Entire Amendment. This Amendment and the Option Agreement and the
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agreements and documents referenced therein collectively constitute the entire
agreement between the parties to this Amendment with respect to the subject
matter of this Amendment and the Option Agreement, and supersede all prior
agreements, understandings and arrangements, oral or written, between the
parties to this Amendment, with respect to the subject matter of this
Amendment and the Option Agreement. Except as specifically provided in this
Amendment, no party shall be deemed to have released or waived any rights,
obligations or claims.
5. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties hereto on separate counterparts,
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each of which counterparts when executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
6. Successors, Assigns and Transferees. This Amendment shall be binding
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upon and accrue to the benefit of the parties hereto and their respective
heirs, successors and assigns.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed
by its duly authorized officer and the Optionee has individually executed this
Amendment as of the date first set forth above.
"COMPANY"
XXXXXX HOLDINGS, INC.
By:
Title:
"OPTIONEE"
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
