EXHIBIT 10(w)
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT
OF
XXXXX X. XXXXXXXX
THIS AMENDMENT No. 2 made and entered into as of this 15th day of March,
2002, by and between XXXXXX INTERNATIONAL, INC. (the "Company") and XXXXX X.
XXXXXXXX ("Executive");
W I T N E S S E T H :
WHEREAS, the Company and Executive entered into an Employment Agreement,
dated as of April 18, 1999, which Agreement became effective on August 19, 1999
and which Agreement has been previously amended by an amendment dated as of
February 2, 2001 (together, the "Employment Agreement"); and
WHEREAS, the parties now desire further to amend the Employment Agreement
in the manner provided in this Amendment No. 2;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Employment Agreement, the parties
hereby agree to amend the Employment Agreement as follows:
1.
Section 2 is hereby amended by deleting the present section in its entirety
and substituting the following in lieu thereof:
"2. Employment and Term; Consulting Agreement
(a) (i) Subject to the terms and conditions of this Agreement, the
Company hereby employs Executive and Executive hereby accepts employment as
President of the Outdoor Products Group and shall have such
responsibilities, duties and authority that are consistent with such
position as may from time to time be assigned to Executive by the Chief
Executive Officer or the Board of Directors, provided, however, that
effective on or after July 1, 2002 the Company may promote or hire a
replacement for Executive for purposes of providing a transition of all or
part of Executive's responsibilities, duties and authority at the Outdoor
Products Group to such replacement and such promotion or hiring and
transition of duties and responsibilities shall not constitute a breach of
this Agreement nor constitute a Good Reason for Executive to terminate
employment; provided, further that Executive shall participate in the
selection of his successor; provided further that the promotion or hiring
of a replacement at the Outdoor Products Group shall not affect the
Company's
obligations to provide Executive with the compensation and benefits
set forth in Section 3 below; (ii) Effective August 15, 2002, or such
earlier date as the Board of Directors may determine, Executive shall serve
as Chief Executive Officer of the Company and shall have such
responsibilities, duties and authority that are consistent with such
position as may be from time to time assigned to Executive by the Board of
Directors; (iii) Executive agrees that during the Term of this Agreement he
will devote substantially all his working time, attention and energies to
the diligent performance of his duties and responsibilities for the
Company. With the consent of the Board of Directors, Executive may serve as
a director on the boards of directors or trustees of additional companies
and organizations.
(b) Unless earlier terminated as provided herein, Executive's
employment under this Agreement shall commence at the Effective Time and
shall end on August 19, 2004 (the "Term"), unless the Term is extended in
accordance with subsection (c) below (in which case such extended period
shall constitute the Term).
(c) Not less than ninety (90) days prior to August 19, 2004 (and any
12-month extension of the Term), the Company may offer to extend the Term
for an additional 12-month period on such terms and conditions as may be
specified in the offer (which may be on the same terms and conditions as
provided herein). If Executive desires to accept such offer, he shall
notify the Company in writing within thirty (30) days of receipt of the
offer and the Agreement shall be extended on the terms and conditions
agreed upon. If Executive's employment is terminated by the Company or
Executive terminates his employment prior to August 19, 2004, his rights
will be determined in accordance with Section 5 of this Agreement, as
modified by subsection 2(e) below.
(d) If Executive remains actively employed by the Company until the
end of the Term (whether such date is August 19, 2004, or a later date at
the end of any agreed upon extension pursuant to Section 2(c) of this
Agreement), the Company shall provide Executive with a consulting agreement
("Consulting Agreement") with the following terms:
(i) The Consulting Agreement shall be for a period of two (2)
years commencing August 20, 2004 and ending August 20, 2006 (or
beginning on his later termination date resulting from any mutually
agreed upon extension(s) of the initial Term pursuant to Section 2(c)
of this Agreement and ending two (2) years later). The period of the
Consulting Agreement may be terminated earlier by the Company in the
event of Executive's death, Disability, termination for Cause (as
defined in Section 6.2 below) or Executive's voluntary termination of
service.
(ii) Executive's title during the period of the Consulting
Agreement will be mutually agreed upon between Executive and the
Company and his duties will be to continue to maintain relationships
with major customers,
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attend trade shows, consult on products and services, and perform such
other duties as may reasonably be assigned to him by the Board of
Directors. Executive will be an independent contractor with respect to
the Company and not an employee.
(iii) Executive will be paid an annual retainer of $200,000 for
his consulting services, for which amount he will be available to
perform services up to ten (10) days per month. The Board of Directors
and Executive will agree on the days Executive will be performing
services under the Consulting Agreement. The Company may request
Executive to perform services for additional days per month at the
rate of $1,600 per day.
Executive will be paid his consulting fees monthly. Executive will
also be reimbursed for the reasonable out-of-pocket expenses
(including business travel and entertainment) which he incurs in
performing his consulting services. Executive will be entitled to a
bonus of $50,000 per year for each Company fiscal year which ends
prior to the termination of the Consulting Agreement, if the Company
meets its financial targets for such fiscal year (such determination
will be made by the Board of Directors).
(iv) Executive will be provided with health and life insurance
coverages (including Exec-U-Care) under the Company's existing benefit
programs, but if such coverages cannot be continued, the Company will
arrange for comparable coverages at its expense. Executive will
continue to be responsible for paying the costs of any dependent
coverage.
(v) To assist in performing the consulting services, Executive
will be provided, at the Company's expense, with an equipped office
and his current secretary/administrative assistant (or a substitute
acceptable to Executive). The secretary/administrative assistant shall
receive a level of compensation and benefits comparable to that being
received by such assistant at the end of the Term. Executive's office
will be at a location acceptable to Executive, but will not be in the
Portland headquarters building. Executive will also be provided with
an automobile (and related costs) under terms similar to those the
Company uses for executives, and with reimbursement for membership
dues and assessments at a country club.
(e) Upon any termination of Executive's employment after March 15,
2002, for any reason, whether before, on or after the end of the Term, he
shall be entitled to the contractual rights and benefits provided below
(except to the extent Executive acquires greater rights upon any such
termination of employment) and to the extent necessary or desirable to
reflect the agreements set forth herein, the Company will amend the
agreements affecting such contractual rights or benefits:
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(i) Executive's termination will be treated as a resignation "at
the request of his Employer" pursuant to Section III(c) of the
Executive Supplemental Retirement Plan of Xxxxxx, Inc..
(ii) Executive's termination will be treated as qualifying as
"Retirement" for purposes of the Nonqualified Stock Option Agreement
(Time Option), dated August 19, 1999, for 60,000 shares and the
Nonqualified Stock Option Agreement (Performance Option), dated August
19, 1999 for 60,000 shares.
(iii) Executive's termination will be treated as qualifying as
"Retirement" for purposes of the Nonqualified Stock Option Agreements,
dated June 29, 2001, February 14, 2002 and March 15, 2002 for 150,000
shares, 39,400 shares and 150,000 shares, respectively.
(iv) Executive's termination will be treated as qualifying as
"Retirement" for purposes of Article IV of the Employee Stockholder
Agreement, dated as of August 19, 1999, and the other provisions of
such agreement."
2.
Section 3(a) is hereby amended by deleting the present section in its
entirety and substituting the following in lieu thereof:
"(a) An annual base salary ("Base Salary") of Four Hundred Thirteen
Thousand Dollars ($413,000.00), prorated for any partial year of
employment. Executive's Base Salary shall be increased each year in such
amount so as to maintain Executive's Base Salary competitive with the base
salaries of chief executive officers of companies of comparable size and
similar industries at such time as the Company increases salaries for its
executive officers generally. Executive's salary shall be payable in
substantially equal installments on a bi-monthly basis, or in accordance
with the Company's regular payroll practices in effect from time to time
for executive officers of the Company."
3.
Section 3(b) is hereby amended by adding the following proviso to the end
of the second sentence of the present section:
"provided, that, for the Company's fiscal years ending December 31,
2002 and 2003, Executive's annual bonus shall be a minimum of $400,000 for
each year."
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4.
Section 3 is hereby amended by adding the following new subsection (g) to
the end of the present section:
"(g) On March 15, 2002, the Company will grant Executive options to
purchase 150,000 shares of Common Stock under the Company's 2000 Stock
Incentive Plan ("2000 Plan"). The Option Exercise Price of the options will
be the average of the closing prices of the Company's stock on the New York
Stock Exchange on the ten (10) trading days immediately preceding March 15,
2002. The options will be 100% vested and immediately exercisable on March
15, 2002. The other terms and conditions of the options will be established
by the Committee in accordance with the terms of the 2000 Plan."
5.
Section 3 is hereby amended by adding the following new subsection (h) to
the end of the present section:
"(h) On or about September 1, 2002, Executive shall be paid in a lump
sum a 100% vested benefit under the Xxxxxx, Inc. and Subsidiaries
Supplemental Retirement Benefit Plan ("SERP") and the Executive
Supplemental Retirement Plan of Xxxxxx, Inc. ("Executive SERP"). Executive
shall be treated for purposes of the SERP and the Executive SERP as if his
employment had terminated on August 31, 2002. The amount of the lump sum
payments shall be as follows: SERP - $ 778,942.52; Executive SERP -
$1,292,122.28. The lump sum payments to Executive shall be made from the
Xxxxxx, Inc. Executive Benefit Plans Trust, but if the Trust fails to make
any or all of such payments, the unpaid amounts shall be paid by the
Company. After the lump sum payments provided for in this subsection 3(h)
have been made, Executives' participation in the SERP and Executive SERP
shall cease and the Company and the Trust shall have no further obligations
to Executive in respect of the SERP or Executive SERP."
6.
This Amendment No. 2 shall be binding on the parties as of the date hereof.
Except as hereby modified, the Employment Agreement shall remain in full force
and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
day and year first written above.
XXXXXX INTERNATIONAL, INC.
By: __________________________________
EXECUTIVE
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Xxxxx X. Xxxxxxxx
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