EXHIBIT 10.183
FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT
THIS FIRST AMENDMENT to the Amended and Restated Agreement (the
"Amendment") is entered into as of September 30, 1999, by and between CATALINA
LIGHTING, INC., a Florida corporation (the "Company") and Xxxxxx X. Xxxxx (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 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 First 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. 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 10, present value shall be determined in
accordance with Section 280G(d)(4) of the Code. For purposes
of this Section 10, 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 10.
(b) All determinations required to be made under this
Section 10 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 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 10, 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 10 shall be borne
by the Company."
2. In all other respects, the Agreement shall remain unchanged by this
Amendment.
IN WITNESS WHEREOF, the Company and the Employee 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
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Xxxxxx Xxxxx, Chairman, President and Chief
Executive Officer
EMPLOYEE:
/s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX
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