Exhibit 10.12
Xxxx X. Xxxxxxx Company
Amendment to 2005 Supplemental Retirement Agreement
THIS AMENDMENT (the "Amendment"), dated as of November 1, 2006, between
Xxxx X. Xxxxxxx Company, a Georgia corporation (the "Company"), and
Xxxxxxx X. Xxxx ("Employee").
WHEREAS, the Company and Employee previously entered into a 2005 Supplemental
Retirement Agreement dated as of January 1, 2005 (the "Agreement"); and
WHEREAS, the parties wish to amend the Agreement to revise the definition of
Change in Control;
NOW, THEREFORE, the Company and Employee agree as follows:
1. Paragraph A(4)(iii) of the Agreement is hereby amended by inserting the
following at the end thereof:
"In addition to the meaning of Change in Control in the Noncompete
Agreement, a Change in Control also shall be deemed to occur upon a change
in the composition of the Board of Directors of the Company that causes
less than a majority of the directors of the Company to be directors that
meet one or more of the following descriptions:
(a) a director who has been a director of the Company for a continuous
period of at least 24 months,
(b) a director who was serving on the Board as a result of the
consummation of a sale by the Company of all or substantially all of
its assets or the consummation by the Company of any merger,
consolidation, reorganization or business combination with any person
that would not be a Fundamental Change, or
(c) a director whose election or nomination as director was
approved by a vote of at least two-thirds of the directors described in
clauses (a), (b) or (c) by prior nomination or election, but excluding,
for purposes of this clause (c), any director whose initial assumption
of office occurred as a result of an actual or threatened (i) election
contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on
behalf of a person or group other than the Board or (ii) tender offer,
merger, sale of substantially all of the Company's assets,
consolidation, reorganization or business combination that would be a
Fundamental Change on the consummation thereof.
For purposes of this Amendment, a "Fundamental Change" shall be deemed to
occur upon the sale by the Company of all or substantially all of its
assets or the consummation by the Company of any merger, consolidation,
reorganization, or business combination with any person, in each case,
other than in a transaction:
(1) in which persons who were shareholders of the Company
(immediately prior to such sale, merger, consolidation, reorganization,
or business combination) own, immediately thereafter, (directly or
indirectly) more than 50% of the combined voting power of the
outstanding voting securities of the purchaser of the assets or the
merged, consolidated, reorganized or other entity resulting from such
corporate transaction (the "Successor Entity");
(2) in which the Successor Entity is an employee benefit plan
sponsored or maintained by the Company or any person controlled by the
Company; or
(3) after which more than 50% of the members of the board of
directors of the Successor Entity were members of the Board at the time
of the action of the Board approving the transaction."
2. The Agreement, as amended by this Amendment, is hereby confirmed and ratified
in all respects.
IN WITNESS WHEREOF, the parties have executed this Amendment effective
as of the date first set forth above.
Xxxx X. Xxxxxxx Company
By: ______________________
Senior Vice President
Employee
Xxxxxxx X. Xxxx
