AMENDMENT TO EMPLOYMENTAGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") is made as of the 2nd day
of February, 2006, by and between CANTAR/POLYAIR CORPORATION, a Delaware
Corporation and its affiliated companies (the "COMPANY"), and XXXX XXXXXXXX,
President Sales and Marketing of the Company's Pool Division ("XXXXXXXX").
RECITALS:
A. The COMPANY and XXXXXXXX entered into an Employment Agreement dated June 1,
2003 (the "Agreement") whereby COMPANY agreed to employ XXXXXXXX under the
terms and conditions set forth therein, a copy of which is attached hereto
as Exhibit A and by this reference made a part of this Amendment.
B. COMPANY and XXXXXXXX desire to amend the provisions of the Agreement in the
event of a "Change of Control" of the Company's Pool Division.
C. Except as provided in this Amendment, the Agreement shall remain in effect
and binding on both Parties in all respects to the fullest extent permitted
by law.
NOW, THEREFORE, for the consideration specified in this Amendment, the COMPANY
and XXXXXXXX hereby agree as follows:
1. DEFINITIONS. Each term used in this Amendment shall have the same meaning
as is ascribed to such term in the Agreement unless otherwise provided for
herein.
(a) For purposes of this Amendment only, a "Change of Control" will occur
if all or a substantial part of the operating assets of the Company's
Pool Division are sold and/or operating control of the Company's Pool
Division is transferred to a person or entity other than Polyair Inter
Pack Inc.("PPK") or its current controlling shareholders Consolidated
Mercantile and Glencoe Capital.
(b) For purposes of this Amendment only, the new person or entity that is
the subject of the Change of Control shall be referred to as the "NEW
COMPANY".
(c) For purposes of this Amendment only, the phrase "Transition Period"
shall mean the six (6) month period immediately following the date of
a Change of Control unless sooner terminated by either Xxxxxxxx or the
New Company.
(d) For purposes of this Amendment only, the phrase "Cause" will have the
same meaning ascribed in the Agreement except that the definition will
be expanded to include any action or inaction of XXXXXXXX by which he
fails to perform services to the best of his ability during the
Transition Period if requested to do so by the COMPANY following a
Change of Control.
2. a) In the event of a Change of Control, if the New Company hires Xxxxxxxx,
Section 6.4 of the Agreement shall not apply. In the event of a Change of
Control wherein Xxxxxxxx advises the Company and the New Company at the
closing date of the Change of Control that he does not elect to join the
New Company, the Company shall pay Xxxxxxxx a lump sum payment of 24 months
salary which is the severance to which he would have been entitled in the
event and as if Section 6.4 of the Agreement if either (a) the New Company
does not request Xxxxxxxx to continue to perform under the Agreement during
the Transition Period or (b) if requested by the New Company, Xxxxxxxx
continues to honor the Agreement during the Transition Period (the "Special
Payment").
b) In the event Xxxxxxxx is entitled to the Special Payment, the Company
shall make the Special Payment thirty (30) days after the termination
of the Transition Period subject to all applicable withholding.
c) In the event Xxxxxxxx does perform under the Agreement during the
Transition Period, then he shall be entitled to all current
compensation including salary, all insurances, car allowances, dues,
bonus and other benefits as contemplated by the Agreement during the
Transition Period. In the event that Xxxxxxxx voluntarily resigns
prior to the end of the Transition Period or the New Company
terminates Xxxxxxxx for Cause during the Transition Period, no Special
Payment will be due.
d) For added clarity, during the Transition Period, Xxxxxxxx shall be
required to perform services as contemplated under the Agreement and
consistent with his responsibilities and authorities prior to the
Change of Control.
e) In the event that Xxxxxxxx is requested to and does provide services
to the New Company during the Transition Period, then the Agreement
shall be deemed assigned to and assumed by the New Company and the
Company shall be released from its obligations under the Agreement
except for its obligation to make the Special Payment. As a matter of
convenience, the parties may determine it is convenient for Xxxxxxxx
to remain on the payroll and/or benefit programs with reimbursement
from the New Company.
f) If Xxxxxxxx constitutes part of the ownership group of the New Company
or enters into any employment or consulting agreement with the New
Company or its affiliates to provide services to the New Company or
its affiliates after the Transition Period, then the Special Payment
will not be due or payable. If Xxxxxxxx enters into any such
arrangement with the New Company or its affiliates after payment of
the Special Payment, he shall return the Special Payment.
3. BINDING EFFECT. The Agreement, as modified by this Amendment (including all
recitals), shall continue in full force and effect, subject to the terms
and provisions of both the Agreement and the Amendment. In the event of any
conflict between the terms of the Agreement and the terms of this
Amendment, the terms of this Amendment shall control.
IN WITNESS WHEREOF, the Company has executed by its duly authorized officer, and
XXXXXXXX has approved and executed this Amendment as of the date indicated
below.
XXXX XXXXXXXX CANTAR/POLYAIR CORPORATION
/s/Xxxx Xxxxxxxx /s/Xxxxx Xxxxxxxxxx
By: Xxxx Xxxxxxxx By: Xxxxx Xxxxxxxxxx
