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Exhibit 10.4a
[Letterhead of Waccamaw Corporation]
February 6, 1998
Re: Amendment to Employment Agreement
Dear Xxxxx,
I am pleased to amend your employment agreement of March 28, 1996 with Waccamaw
Corporation. The intent of this amendment is to provide you with certain
guaranteed compensation in the event of a Change in Control of the corporation
or the termination of your employment from Waccamaw. The terms and conditions of
this agreement are as follows:
1. Term and Termination. The term of employment under this Agreement shall
begin on February 1, 1998 and shall continue indefinitely until
terminated under this paragraph. Your employment is at-will.
(a) If Waccamaw terminates your employment without Cause (not
including death, normal retirement or if you become Disabled
as defined below), you shall receive a lump sum payment of one
(1) year's base salary in effect as of the date of
termination.
(b) Waccamaw may terminate this Agreement at any time for Cause.
"Cause" shall mean:
(1) the commission of fraud, embezzlement, theft or
material violation of law by you in connection with
or related to your employment with the Company or
your conviction of a crime involving moral turpitude.
(2) your willful and material failure to comply with the
requirements of the Company's Code of Business
Conduct or Antitrust and Trade Regulations booklet.
(3) after specific written notice from the President or
Board of Directors setting forth the particular duty
required of you, and after a reasonable time to cure,
the continued willful and material failure by you to
perform a duty or obligation required of you under
this Agreement.
(4) Waccamaw may terminate this Agreement if you become
Disabled. "Disabled" means an illness or accident
occurring during employment which
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prevents you from performing your duties, with or
without reasonable accommodation, for a period of six
(6) consecutive months.
2. Change in Control. In the event of a Change in Control of the
corporation that results in termination of your employment within
certain time periods, you shall receive certain guaranteed compensation
as follows: In the event of termination of your employment within one
(1) year following a Change in Control, (i) by the Company for reason
other than Cause, death, disability or normal retirement; or (ii) by
you for Good Reason, you shall be entitled to receive a lump sum
payment equal to your annual base salary in effect as of the date of
termination.
(a) A "Change in Control" shall mean:
(1) Any stock sale, exchange, merger, reorganization,
stock issuance, stock redemption, or other
transaction, occurrence or series of transactions, or
occurrences, resulting in the change of ownership of
the Company such that more than fifty percent (50%)
of the voting rights of the Company's stock is held
after such change, directly, indirectly, or
beneficially by a person or entity or a group of
persons or entities under common control (a "New
Control Person") other than the Government of Kuwait,
or an entity controlled directly or indirectly by the
Government of Kuwait, unless the New Control Person
has advised Employee of its good faith intent to
register the common stock of the Company in an
initial public offering (an "IPO") under the
Securities Exchange Act of 1934, as amended, within
six (6) months of such change;
(2) Any sale of all or substantially all of the assets of
the Company to a New Control Person;
(3) Provided, anything herein to the contrary
notwithstanding, a Change in Control cannot occur
subsequent to an IPO.
(b) For the purposes of this Agreement alone, "Good Reason" shall
mean:
(1) A change in your status or position with the Company
that represents a material adverse change from your
status or position in effect immediately before the
Change in Control.
(2) The assignment to you of any material duties or
responsibilities that are inconsistent with your
status or position in effect immediately before the
Change in Control.
(3) The transfer of your principal place of employment to
a location in excess of 25 miles from Myrtle Beach,
South Carolina, without fully compensating you for
expenses related to your relocating to this new
location.
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(4) A reduction by the Company in your base compensation
in effect at the time of the Change in Control, a
material adverse change in the method of determining
your incentive compensation or a material decrease in
benefits made available to you other than to changes
in benefits plans that apply to the Company in
general.
(c) This paragraph shall become void and no longer in effect if no
Change in Control occurs by February 1, 2001.
3. Confidential Information. During and as a result of your employment
with Waccamaw, you may have access to valuable and propriety trade
secrets or confidential information, knowledge, documents or other data
relating to Waccamaw's business, including business plans, sales
methods and techniques, marketing plans and strategies, pricing
information, and similar information. In consideration for the benefits
provided to you under this Agreement, which are beyond those to which
you would otherwise be entitled as a result of your employment with
Waccamaw, during and after termination of your employment with
Waccamaw, you agree to keep confidential and not make use of such
confidential information without advance consent by the Company. You
also agree, upon termination of employment for any reason, to return
any documents or materials containing or reflecting confidential
information to Waccamaw.
This amendment shall become effective as of February 1, 1998. Please acknowledge
your agreement to this amendment by signing this letter where indicated below
and returning it to me.
Xxxxx, we at Waccamaw Corporation look forward to a continuing productive
working relationship.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
President & CEO
WACCAMAW CORPORATION
Agreed to and accepted this
7th day of February, 1998
/s/ Xxxxx Xxxxxxx SEAL
Xxxxx Xxxxxxx
