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EXHIBIT 10.6(d)
Amendment effective February 6, 1998,
amending the Form of Employment Agreement
between the Registrant and Xxxxxxx Xxxxx,
dated February 8, 1990, as amended.
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AMENDMENT TO
EMPLOYMENT AGREEMENT
WHEREAS, Xxxxxxx Xxxxx (the "Executive") and Xxxxxx General
Corporation, a Delaware corporation (the "Company"), entered into an Employment
Agreement as of February 8, 1990, as amended as of January 23, 1996 (the
"Agreement"); and
WHEREAS, the Executive and the Company wish to amend the
Agreement in certain respects;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the Executive and the Company agree
that the Agreement shall be amended, effective as of February 6, 1998, as set
forth herein.
Unless otherwise defined herein, capitalized terms used herein
shall have the meaning ascribed to such terms in the Agreement.
1. The second paragraph of the preamble of the Agreement is
hereby amended in its entirety to read as follows:
The Executive is presently employed as President of
the Company.
2. Section 10(b) of the Agreement is hereby amended and
restated to read as follows:
(b) For purposes of this Section 10, a "Change in Control" of
the Company shall mean a change in control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), whether or not the Company is in fact
required to comply therewith, provided that, without limitation, such a
change in control shall be deemed to have occurred if (A) any "person"
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act),
other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned, directly
or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding securities (such event, a "50% Event"); or (B) during
any period of two consecutive years (not including any period prior to
the original execution of this Agreement), individuals who at the
beginning of such period constitute the Board and any new director
(other than (i) any director designated by a person who has entered
into an agreement
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with the Company to effect a transaction described in clauses (A) or
(C) of this Subsection and (ii) any director whose initial assumption
of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose election by the
Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof; or (C)
the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 60% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the
stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company
of all or substantially all the Company's assets. Notwithstanding the
foregoing, the occurrence of a 50% Event shall not, of itself,
constitute a change in control of the Company for purposes of the
preceding sentence if, within 30 days after the occurrence of such 50%
Event, such "person's" beneficial ownership of securities of the
Company decreases to less than 50% of the combined voting power of the
Company's then outstanding securities; provided, however, if the
Executive's employment is terminated by the Company without Cause while
the 50% Event continues in effect during such 30-day period, the
foregoing provisions of this sentence shall be null and void and of no
effect, and the determination of whether a change in control has
occurred shall be made without reference to the foregoing provisions of
this sentence.
3. Section 12 of the Agreement is hereby amended and restated
to read as follows:
12. Severance Agreement. The Company and the
Executive are parties to an agreement dated June 3, 1986, as amended
from time to time, relating to the Executive's employment in the event
of a "change in control" of the Company (the "Severance Agreement").
Upon the occurrence of a "change in control" (as defined in the
Severance Agreement) that occurs during the Employment Term, this
Agreement shall immediately terminate and be of no further force or
effect, and all rights and obligations of the Company and the Executive
with respect to the Executive's employment by the Company shall be
governed by the terms of the Severance Agreement. During the Employment
Term, the Company shall not terminate or permit to expire the Severance
Agreement. Notwithstanding any other provision hereof, nothing in this
Section 12 shall adversely affect the rights of the Executive hereunder
if the Employment Term has ended prior to such "change in control".
Except as amended hereby, the Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by a duly authorized officer of the Company, and Executive has
executed this Amendment, on this ____ day of ________, 1998, effective as of
February 6, 1998.
XXXXXX GENERAL CORPORATION
By:
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Name: Xxx X. Xxxxxxx
Title: Chief Executive
Officer
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Xxxxxxx Xxxxx
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