XXXXXXXXX RESOURCES, INC.
0000 Xxxxx Xxx Xxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
As of October 17, 1995
Mr. X. Xxxxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xxxx:
This letter will confirm our understanding that your employment agreement,
dated May 31, 1988 (the "Initial Agreement"), as amended as of December 6, 1989
(the "Amendment" and, together with the Initial Agreement, the "Agreement") is
hereby further amended as set forth below:
1. Effective August 4, 1995, your annual salary is increased to $150,000
per year.
2. For calendar 1995 and subsequent years, you shall receive such bonus or
bonuses which the Board of Directors in its sole discretion may award for
services during such year. The foregoing shall be in lieu of the provisions of
paragraph 1 of the Amendment.
3. In lieu of the provisions of paragraph 6 of the Initial Agreement the
following provisions shall apply:
(i) other than during a "Potential Change of Control", if prior
to the consummation of a "Change of Control" your employment is terminated by
the Company without Cause or you quit for Good Reason, you shall be entitled to
receive all amounts of base salary payable to the date of termination plus an
amount equal to one year's base salary as in effect immediately prior to your
termination.
(ii) If (a) within 36 months following the occurrence of any
Change of Control or the execution of a definitive agreement by Xxxxxxxxx
Resources, Inc. for a transaction which would result in a Change of Control, or
(b) during the period commencing on the date of a public announcement of a
proposal to effectuate a transaction that would result in a "Change of Control"
of the type specified in clauses (i), (iii) or (iv) of the definition thereof
and ending on the date that such proposal expires or is withdrawn (a "Potential
Change of Control"), either (i) the Company terminates your employment without
Cause or (ii) you terminate your employment with the Company for Good Reason
within twelve months of the occurrence of the event or circumstances
constituting Good Reason, you shall be entitled to receive all amounts of base
salary payable to the date of termination plus an amount equal to three times
the greater of (i)
Mr. X. Xxxxxxx Xxxxxxxx
As of October 17, 1995
Page 2
your annual salary in effect immediately prior to the Change of Control last
occurring, and (ii) your annual salary in effect immediately prior to the date
of termination. "Change of Control" means (i) the acquisition by any person or
"group" in a single transaction or series of related transactions of shares of
Common Stock or other voting securities representing 50% or more of the
outstanding voting power, entitled to vote generally in the election of
directors of the Company after giving effect to such transaction, (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constitute a majority of the Board of Directors of the Company cease to
constitute a majority thereof unless the election, or the nomination for
election by the stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period, (iii) the sale of all or substantially all of the
assets of the Company (other than to a wholly-owned subsidiary of the Company),
or (iv) the sale of a majority of the capital stock of Xxxxxxxxx Environmental,
Inc. or substantially all of its assets. This paragraph 3 contemplates that
there may be multiple Changes of Control or Potential Changes of Control.
(iii) "Cause" shall mean (i) the commission of a felony or a crime
involving moral turpitude or the commission of any other act involving
dishonesty, disloyalty or fraud with respect to the Company, (ii) conduct
tending to bring the Company into substantial public disgrace or disrepute,
(iii) substantial and repeated failure to perform duties as reasonably directed
by the Board, (iv) gross negligence or willful misconduct with respect to the
Company or any of its subsidiaries or affiliates, or (v) any other material
breach of any agreement between you and the Company or its subsidiaries and
affiliates which is not cured within 15 days after written notice thereof to
you. In addition, prior to a "Change of Control" except during the pendency of a
"Potential Change of Control", Cause shall include failure to satisfactorily
perform duties and responsibilities as reasonably determined by the Board of
Directors. You shall not be deemed to have been terminated for Cause unless and
until there has been delivered to you a resolution of the Board of Directors,
adopted after you have had a reasonable opportunity to be heard, stating that in
the good faith opinion of the Board, you engaged in conduct constituting
"Cause", specifying the basis therefor in reasonable detail.
(iv) "Good Reason" means: assignment to you of any duties inconsistent
with those of a chief financial officer; reduction in base salary; or only after
a Change of Control has occurred or during the pendency of a Potential Change of
Control requiring you to be based anywhere other than a 50-mile radius of
Lexington, Kentucky, except for reasonable travel as required for Company
business.
Mr. X. Xxxxxxx Xxxxxxxx
As of October 17, 1995
Page 3
4. All of the terms and provisions of the Agreement shall continue in full
force and effect after the date hereof, except as modified herein.
If the foregoing correctly reflects our understanding as to the subject
matter hereof, please do indicate in the space indicated below, whereupon the
Employment Agreement shall be amended as set forth herein.
XXXXXXXXX RESOURCES, INC,
/S/
By: _______________________________
Chairman of the Board
/S/ X. Xxxxxxx Xxxxxxxx
_________________________
X. Xxxxxxx Xxxxxxxx
11-14-95
