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EXHIBIT 10.1
AMENDMENT NO. 2 TO
TRANSITION AND RETIREMENT AGREEMENT
This AGREEMENT (the "Agreement") is entered into as of the 22nd of
June, 2000, by and between XXXXX XXXXXXXX CORPORATION, a Delaware corporation
(the "Company"), and XXXXXXX X. XXXXX (the "Executive").
WHEREAS, the Company and the Executive are parties to a Transition
and Retirement Agreement, dated as of February 3, 2000, as amended as of March
31, 2000 (such agreement, as amended, being hereinafter referred to as the
"Retirement Agreement"); and
WHEREAS, the Company and Executive wish to amend the Retirement
Agreement in certain respects;
NOW, THEREFORE, for good and valuable consideration, the receipt
of which is hereby acknowledged, the Company and the Executive hereby agree as
follows:
1. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Retirement Agreement.
2. Section 1(a) of the Retirement Agreement is hereby amended by
adding the following sentence after the first sentence thereof:
"The Company shall have the option, by written notice to
Executive given at least ten days prior to the end of the
Transition Period as then in effect, to extend the Transition
Period, subject to (1) and (2) of the first sentence of this
Section 1(a), to a date not later than December 31, 2000 (and
in such event, the Transition Period shall be determined by
substituting such extended date for June 30, 2000)."
3. The first sentence of Section 1(b) of the Retirement Agreement
is hereby amended in its entirety to read as follows:
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"Without limiting Executive's duties and responsibilities as
Chairman, President and CEO during the Transition Period,
during the Transition Period and, if the Transition Period
shall have ended prior to July 31, 2000, thereafter through
July 31, 2000 (the "Post-Transition Period"), Executive shall
reasonably cooperate with the Company with regard to management
transition and succession (including, but not limited to,
reasonably cooperating with the Company in the search for his
successor as CEO and reasonably cooperating with such successor
and the Company in the transition process)."
4. Section 3(a)(5) of the Retirement Agreement is hereby amended
in the following respects:
(a) The parenthetical language "(or such earlier date on
which the Transition Period ends)" contained in the third
sentence thereof shall be deleted.
(b) The seventh sentence thereof shall be amended in its
entirety to read as follows:
"The remaining one million dollars ($1,000,000), plus, if
the Transition Period shall have ended prior to July 31,
2000, interest thereon from the end of the Transition
Period to the date of payment at the rate announced by
Bank of America as its "prime rate" as in effect at
January 31, 2000 (the "Prime Rate") (such one million
dollars plus interest (if applicable) being referred to
as the "Holdback Amount"), shall be paid to Executive as
soon as practicable following July 31, 2000 (but in no
event earlier than payment of the amounts pursuant to the
immediately preceding sentence), unless a two-person
committee (the "Committee") of Company directors,
consisting of Messrs. Xxxxxx Xxxx and Xxxxxxx Xxxxxx (or,
in the event of the death or incapacity or resignation of
either or both of such individuals, another Company
director or directors acceptable to the Executive), shall
have theretofore determined in good faith that the
Executive failed to perform his obligations under Section
1 of this Agreement or materially failed to comply with
the provisions of Section 1 2(c)(i) of the Employment
Agreement."
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(c) The parenthetical phrase "(but in no event later than
fifteen (15) days after the end of the Post-Transition
Period)" contained in the eighth sentence thereof shall
be deleted and replaced by the parenthetical phrase "(but
in no event later than fifteen (15) days after the later
of the end of the Post-Transition Period or the end of
the Transition Period)."
(d) The phrase "prior to the end of the Post-Transition
Period" contained in the tenth sentence thereof shall be
deleted and replaced with the phrase "prior to the later
of the end of the Post-Transition Period or the end of
the Transition Period."
(e) The parenthetical phrase "(or, if earlier and the
Executive otherwise qualifies to receive the Holdback
Amount, promptly following the end of the Post-Transition
Period)" contained in the last sentence thereof shall be
deleted and replaced by the parenthetical phrase "(or, if
earlier and the Executive otherwise qualifies to receive
the Holdback Amount, promptly following the later of the
end of the Post-Transition Period or the end of the
Transition Period)."
5. The parenthetical following the word "employment" in Section
3(b) of the Retirement Agreement shall be amended to read as follows:
"(other than (i) in accordance with the notice requirements of
the second sentence of Section 1(a) hereof, thereby ending the
Transition Period at the end of the notice period, or (ii) for
Good Reason, as defined in Section 7(e) of the Employment
Agreement, except that (1) the actions contemplated by the last
sentence of Section 1(a) shall not constitute Good Reason and
(2) any claim by the Executive that Good Reason exists shall be
based solely on acts or omissions occurring on or after the
Effective Date)"
6. Section 3(c) of the Retirement Agreement shall be amended by
adding, after the date "June 30, 2000" contained therein, the parenthetical
phrase "(or such later date to which the Transition Period shall have been
extended)."
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7. Section 3(d) of the Retirement Agreement is hereby amended in
its entirety to read as follows:
"(d) Notwithstanding the preceding paragraphs (a) through (c)
of this Section, in the event that prior to the end of
the Transition Period and while Executive is (or is
deemed to be) in the employ of the Company, or in the
event that prior to December 31, 2000 (unless Executive
had theretofore voluntarily terminated his employment
other than for Good Reason or the Transition Period had
ended by reason of a written notice from the Executive
under Section 1(a) hereof), (1) a Change in Control (as
defined in Section 8(g) of the Employment Agreement)
shall occur or (2) a definitive agreement (a "Change in
Control Agreement") is entered into by the Company
consummation of the transaction contemplated by which
would constitute a Change in Control, then (A) as of the
date of such Change in Control (but in the case of a
Change in Control described in clause (i) of Section
8(g) of the Employment Agreement which results from
determining beneficial ownership without regard to the
sixty day period referred to in Rule 13d-3 under the
Securities Exchange Act of 1934 (a "Special Change in
Control"), as of the date of consummation of the
transaction contemplated by such Special Change in
Control) but in any event not later than June 30, 2000
(or, if later, the end of the Transition Period),
Executive's employment shall be deemed to have
terminated under circumstances entitling him to the
payments and benefits set forth in Section 8(d) (and, if
applicable, Section 9(b)) of the Employment Agreement,
(B) after the earlier of (i) consummation of such Change
in Control (or, in the event of a Special Change in
Control or in the event of the Company enters into a
Change in Control Agreement, after consummation of the
transaction contemplated by such Special Change in
Control or Change in Control Agreement), or (ii) the
later of July 31, 2000 or the end of the Transition
Period, Executive shall have no further obligations
under Section 1 hereof and (C) in lieu of the payments
and benefits otherwise provided under this Agreement and
subject to the succeeding provisions of this paragraph,
Executive's rights shall be limited to receipt of the
payments and benefits set forth
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in said Section 8(d) (and, if applicable, Section 9(b));
provided, however, that in the event of a Special Change
in Control or in the event the Company enters into a
Change in Control Agreement, the Company's obligation to
make or provide the foregoing payments and benefits
shall apply only upon consummation of the transaction
contemplated by the Special Change in Control or Change
in Control Agreement (as the case may be) and in the
event such transaction is abandoned or not otherwise
consummated for any reason, then this paragraph (d)
shall not apply and Executive's rights shall be
determined pursuant to paragraph (a), (b) or (c) of this
Section 3, whichever paragraph is applicable; and
provided, further, that for purposes of any such
transaction which is consummated, the non-vested portion
of Executive's outstanding stock options (determined
immediately prior to the end of the Transition Period)
shall be treated as outstanding. Notwithstanding the
foregoing, pending consummation of any such transaction,
the amounts and benefits to which Executive is otherwise
entitled under paragraph (a), (b) or (c) of this Section
3 shall be paid or provided in accordance with the
provisions of the applicable paragraph (and Executive
shall be under no obligation to return any such amounts
or benefits received to which he is otherwise entitled),
subject to supplemental amounts and benefits being paid
or provided by the Company under Sections 8(d) and 9(b)
of the Employment Agreement upon consummation of such
transaction, it being understood, however, that the
Company shall be under no obligation to make payments or
provide benefits under said Section 8(d) or 9(b) to the
extent such payments or benefits are duplicative of
payments or benefits theretofore made or provided to
Executive hereunder (and, more particularly, it being
understood that the Retirement Benefits to which
Executive is entitled under said Section 8(d) shall be
offset by the amounts payable to Executive under
Sections 3(a)(4) and 3(a)(5) hereof). Further, nothing
herein shall limit Executive's rights which arise under
any Company plan or grant upon the occurrence of a
Change in Control prior to the end of the Transition
Period while Executive is in the employ of the Company.
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8. The form of Release attached as Exhibit D to the Retirement
Agreement shall be amended by adding the words "as amended," following the date
"February 3, 2000" contained in paragraph (a) thereof.
9. Except as amended hereby, the Retirement Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
June 22, 2000.
XXXXX XXXXXXXX CORPORATION
ATTEST: By: /s/ Xxxx Xxxxxxx
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Chairman: Compensation Committee
/s/ Xxxx Xxxxxxx
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Corporate Secretary
/s/ X. X. Xxxxx
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Executive
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