Exhibit 10.2
AMENDMENT TO EMPLOYMENT AGREEMENT
WITH XXXXXXX XXXXXX
The Employment Agreement between XXXXXXX.XXX, LTD., a Delaware
corporation (the "Corporation"), and XXXXXXX XXXXXX (the "Executive"), dated as
of the 6th day of May, 1999 (the "Agreement"), is hereby amended, as of June 27,
2001, as set forth below.
1. Effective as of the date hereof, Section 2.1 of the Agreement is
hereby amended by adding the following words at the end thereof:
"The term Basic Compensation as utilized in this Agreement shall
refer to Basic Compensation as it may be increased from time to time."
2. Effective as of the date hereof, Section 4.3(d) of the Agreement
is hereby deleted in its entirety and replaced with the following words:
(d) GROSS-UP PAYMENTS.
(i) Anything in this Agreement to the contrary notwithstanding, in
the event it shall be determined that any payment or distribution by the
Corporation or its affiliated companies, or their respective successors, to or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
4.3(d)) (the "Payment") would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (the "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(ii) Subject to the provisions of Section 4.3(d)(iii), all
determinations required to be made under this Section 4.3(d), including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be
made by PricewaterhouseCoopers LLP or such other certified public accounting
firm as may be designated by the Executive (the "Accounting Firm") that shall
provide detailed supporting calculations both to the Corporation and the
Executive within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Corporation. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control, the
Executive shall appoint another nationally recognized accounting firm to make
the determinations required hereunder (which accounting firm shall then be
referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Corporation. Any Gross-Up Payment, as determined pursuant
to this Section 4.3(d), shall be paid by the Corporation to the Executive within
five days of the receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding upon the Corporation and
the Executive. As a result of the uncertainty in the application of Section 4999
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments that will not have been made by
the Corporation should have been made (the "Underpayment"), consistent with the
calculations required to be made hereunder. In the event the Corporation
exhausts its remedies pursuant to Section 4.3(d)(iii) and the Executive
thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Corporation to or for the benefit of
the Executive.
(iii) The Executive shall notify the Corporation in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Corporation of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than 10 business days after the
Executive is informed in writing of such claim and shall apprise the Corporation
of the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which the Executive gives such notice to the
Corporation (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Corporation notifies the Executive in
writing prior to the expiration of such period that the Corporation desires to
contest such claim, the Executive shall:
(A) give the Corporation any information reasonably requested by the
Corporation relating to such claim,
(B) take such action in connection with contesting such claim as the
Corporation shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Corporation,
(C) cooperate with the Corporation in good faith in order effectively to
contest such claim, and
(D) permit the Corporation to participate in any proceedings relating to
such claim;
provided, however, that the Corporation shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 4.3(d)(iii), the Corporation shall control
all proceedings taken in connection with such contest and, at its sole option,
may pursue or forgo any and all administrative appeals, proceedings, hearings
and conferences with the applicable taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; provided, however, that if the Corporation directs the Executive to
pay such claim and xxx for a refund, the Corporation shall advance the amount of
such payment to the Executive, on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and provided, further, that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Corporation's control of the
contest shall be limited to issues with respect to which the Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(iv) If, after the receipt by the Executive of an amount advanced by
the Corporation pursuant to Section 4.3(d)(iii), the Executive becomes entitled
to receive any refund with respect to such claim, the Executive shall (subject
to the Corporation's complying with the requirements of Section 4.3(d)) promptly
pay to the Corporation the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If, after the receipt
by the Executive of an amount advanced by the Corporation pursuant to Section
4.3(d)(iii), a determination is made that the Executive shall not be entitled to
any refund with respect to such claim and the Corporation does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
(v) The provisions of this Section 4.3(d) shall inure the benefit of
the Executive during the Employment Term regardless of whether or not the
Executive's employment is terminated, and if the Executive's employment is
terminated, the rights and obligations of the Executive and the Corporation
under this Section 4.3(d) shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Corporation
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
XXXXXXX.XXX, LTD.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Director
