EXHIBIT 10(a)
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (the "Agreement") made as of
the 1st day of January, 1997 by and between XXXXXXX, INC., a Delaware
corporation (the "Company"), and XXXXXX X. XXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto entered into an Employment Agreement dated as
of January 1, 1990, as amended by a First Amendment thereto dated as of
January 1, 1993 and further amended by a Second Amendment thereto dated as of
January 1, 1995 (collectively, the "Original Employment Agreement"), pursuant
to which the Company agreed to continue to employ the Executive, and the
Executive agreed to remain in the employ of the Company; and
WHEREAS, the parties have agreed to certain modifications to the Original
Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, and for good and valuable other consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Defined Terms. All capitalized terms not defined herein shall
have the same meaning ascribed to such terms in the Original Employment
Agreement.
Section 2. Amendments to Original Employment Agreement. (a) Effective
as of the date hereof, Section 1(b) of the Original Employment Agreement is
amended in its entirety to read as follows:
"(b) Subject to earlier termination as provided in Section 4 herein,
the "Employment Period" shall be the period commencing on
January 1, 1997 and continuing until the date either the
Company or the Executive shall notify the other, in writing,
that such party desires to terminate the Executive's employment
under this Agreement. Notwithstanding the foregoing, unless
the Employment Period has already terminated, the Employment
Period shall be automatically extended upon a Change in Control
so as to terminate three years from the Effective Date (such
three year period of the Employment Period being hereinafter
referred to as the "Change in Control Employment Period")."
(b) Effective as of the date hereof, clause (i) of Section 4(e) of the
Original Employment Agreement is amended in its entirety to read as follows:
"(i) if the Executive's employment is terminated by the Company
(other than for Cause or Disability) or by the Executive, the
Date of Termination shall be the date on which the Company or
the Executive, as the case may be, notifies the other of such
termination and"
(c) Effective as of the date hereof, Section 5(d) of the Original
Employment Agreement is amended in its entirety to read as follows:
"(d) Termination Other than for Cause or Disability Prior to the
Effective Date. If, during the Employment Period but prior to the Effective
Date, the Company shall terminate the Executive's employment other than for
Cause or Disability.
(i) the Company shall pay to the Executive:
(A) an amount equal to the Annual Base Salary, such amount to
be paid in twelve substantially equal monthly
installments; and
(B) an amount equal to the Highest Annual Bonus, such amount
to be paid in twelve substantially equal monthly
installments; and
(C) any compensation previously deferred by the Executive
(together with any accrued interest therein) and not yet
paid by the Company, such amount to be paid in a lump sum
within 30 days following the Date of Termination.
(ii) for a period of twelve (12) months following the Date of
Termination, the Company shall continue benefits to the
Executive and/or the Executive's family equal to those which
would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 3(b)(v)
of this Agreement in effect as of the Date of Termination if
the Executive's employment had not been terminated. For
purposes of determining eligibility of the Executive for
retiree benefits pursuant to such plans, practices, programs
and policies, the Executive shall be considered to have
remained employed until the end of such twelve (12) month
period and to have retired on the last day of such period."
(d) Effective as of the date hereof, the address for the Executive and
the Company set forth in Section 11(b) of the Original Employment Agreement
are amended to read as follows:
"If to the Executive:
Xxxxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
2
If to the Company:
Xxxxx X. Xxxxxx, Chairman
Compensation Committee of the Board
of Directors of Xxxxxxx, Inc.
SCI Investors, Inc.
000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxxx, XX 00000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000"
Section 3. Ratification. Each party hereto hereby ratifies and confirms
all of its obligations, covenants, duties and agreements set forth in the
Original Employment Agreement, as amended by the terms hereof. All
references to the "Employment Agreement" or the "Agreement" or any other
defined term amended hereby contained in the Original Employment Agreement,
shall be deemed to be amended to refer to the Original Employment Agreement,
as amended by the terms hereof or to such amended defined term, as the case
may be.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Company has caused
these presents to be executed in its name on its behalf, all as of the day
and year first above written.
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
XXXXXXX, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxxx
------------------------------
Title: Executive Vice President
3
