Exhibit 10(ii)(A)
XXXXXXX IT SOLUTIONS, INC.
SECOND AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Second Amendment To Amended And Restated Employment Agreement is made
this 13th day of October, 2005, effective as of the 13th day of October, 2005,
by and between Xxxxxxx IT Solutions, Inc., a Delaware corporation ("Company")
and Xxxxxxx X. Xxxxxxx ("Executive").
WHEREAS, on the 3rd day of November, 2003, Company and Executive entered
into an Amended and Restated Employment Agreement;
WHEREAS, on the 6th day of January, 2004, Company and Executive entered
into a First Amendment to Amended and Restated Employment Agreement; and
WHEREAS, Company and Executive desire to amend the agreement, to reflect
certain changes agreed upon by Company and Executive regarding compensation
payable to Executive for the 2005 fiscal year of Company.
NOW THEREFORE, in consideration of the foregoing premises, and the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
1. Sections 5(b) and 5(c) are amended to set forth the following
criteria, for the 2005 fiscal year bonus plan for Executive as follows:
(b) Annual Bonus. Executive shall be entitled to a bonus and
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restricted stock grant for the 2005 fiscal year in the event Executive
satisfies the applicable criteria set forth below of the Company's Net
Sales and Revenues and the Company's Earnings Per Share ("EPS") (as
hereinafter defined) of the Company for 2005, as follows:
(i) Net Sales and Revenues of Company greater than
$860,000,000.00 with an EPS of $1.25 or greater equals
$400,000.00 cash bonus and a 20,000 share restricted stock
grant.
(c) Annual Bonus Determination. Within thirty (30) days of the
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conclusion of the 2005 fiscal year of the Company and each fiscal year
thereafter, Executive and Company shall agree upon the threshold of Net
Sales and Revenues and EPS or any other performance-related criteria to be
utilized for determining any bonus and restricted stock grant to be awarded
to Executive for such year. Such bonus and restricted stock grant for each
subsequent year of this Employment Agreement shall be consistent with
Executive's prior plan.
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Any restricted stock grant of Company's no-par common stock shall be
made pursuant to the terms of the Company's 2002 Amended and Restated Stock
Incentive Plan that pertains to performance restricted share awards.
For purposes of this section, the term "Net Sales and Revenues" shall
mean the net sales and revenues of Company during the applicable period on
a consolidated basis as reflected on the Company's 2005 audited financial
statements. In making such Net Sales and Revenues determination, all gains
and losses realized on the sale or other disposition of Company assets not
in the ordinary course of business shall be excluded.
For purposes of this Agreement, the "EPS" shall be the Earnings Per
Share of Company as reflected on its consolidated audited financial
statements for the year 2005. For purposes of this Agreement, the EPS shall
be computed without regard to the bonus payable to Executive under the
terms of his Employment Agreement, shall exclude any gains or losses
realized by Company on the sale or other disposition of its assets other
than in the ordinary course of business (and shall exclude any
extraordinary one-time charges made by Company during such fiscal year).
Such Net Sales and Revenues and EPS shall be determined on a consolidated
basis by the independent accountant regularly retained by the Company,
subject to the foregoing provisions of this subparagraph and in accordance
with generally accepted accounting principles. Said determination and
payment of such bonus shall be made within seventy-five (75) days following
the end of the fiscal year of the Company and the determination by the
accountant shall be final, binding and conclusive on all parties hereto. In
the event the audited financial statements are not issued within such
seventy-five (75) day period, Company shall make the payment due hereunder,
if any, based on its best reasonable estimate of any liability hereunder,
which amount shall be recorded and shall be reconciled by both parties once
the audited financial statements are issued. Company shall have the ability
to advance amounts to Executive based upon the projected amount of the
bonus compensation to be paid hereunder. In the event that such advance
payments are in excess of the amount due hereunder, any such excess shall
be reimbursed to Company by Executive within seventy-five (75) days
following the end of the fiscal year. In the event such advance payments
are less than the amount of said bonus as determined hereunder, any
additional amount due Executive shall be paid within seventy-five (75) days
following the end of the fiscal year of the Company.
In the event that Company would acquire during its 2005 fiscal year a
company that had gross revenues in excess of $100,000,000.00 for its most
recently concluded fiscal year, Company and Executive shall in good
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faith determine whether any adjustments to the Net Sales and Revenues and
EPS criteria set forth above, whether upward or downward, shall be made in
order to reflect the effect of such acquisition on the operations of the
Company.
2. Section 5(f) is amended for the years November 3, 2005, November 3,
2006 and November 3, 2007 by inserting in line 7 of said paragraph the words,
"fifty thousand shares," in lieu of "one hundred thousand shares."
3. Section 5 is amended by adding at the end of Section 5(f), the
following Section 5(g):
(g) Restricted Stock Award. Upon the implementation of the
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Company's Long Term Incentive Program for Management under Company's 2002
Amended and Restated Stock Incentive Plan ("Plan"), Executive shall be granted
for the year 2005, 48,000 retention restricted shares upon the terms and
conditions of the Plan applicable to retention restricted stock awards. Any
future grant of restricted shares under the Plan to Executive for subsequent
years shall be subject to the determination of the Board of Directors of the
Company.
Except as modified above, the terms of the Amended and Restated Employment
Agreement, as amended by the First Amendment to Amended and Restated Employment
Agreement dated January 6, 2004 and as amended hereby are hereby affirmed and
ratified by the parties.
IN WITNESS WHEREOF, this Second Amendment To Amended And Restated
Employment Agreement has been executed as of the day and year first above
written.
WITNESSES: XXXXXXX IT SOLUTIONS, INC.
Xxxxxx Xxxxxx
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Xxxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxxx
By:
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Xxxxxxx X. Xxxxxxxxxx, CFO
Xxxxxx Xxxxxx Xxxxxxx X. Xxxxxxx
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Xxxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx
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