EXHIBIT 10.9
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
XXXX X. XXXXXX
THIS AMENDMENT NO. 1 TO THE EMPLOYMENT AGREEMENT ("Agreement") made and
entered into as of the 1st day of September, 2001 by and between XXXXXX XXXXX
COMPANY, now PHOENIX FOOTWEAR GROUP, INC. ("Employer" or the "Company"), and
XXXX X. XXXXXX ("Employee" or "Xxxxxx").
RECITALS
WHEREAS, the Company has relocated its principal office to Carlsbad,
California and has requested Xxxxxx to relocate his residence to the same area;
and
WHEREAS, Xxxxxx and the Company wish to continue his employment under the
Agreement as herein amended (the "Amended Agreement");
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the parties agree as follows, the section numbers coinciding
with the sections of the Agreement:
4. Base Salary, Expenses and Benefits. Section 4 of the Agreement is
hereby amended to replace the first sentence thereof with the following:
The Company shall pay Xxxxxx as compensation for his services an annual
base salary of not less than $220,000 commencing March 1, 2003, and not
less than $240,000 commencing on the date when Xxxxxx reports for work at
the Company's offices in Carlsbad, California after having relocated his
principal residence to that area, payable in accordance with the Company's
usual payment practices.
And to add a subparagraph 4(c) as follows:
(c) Xxxxxx shall participate in such executive bonus incentive plans as
may be established from time to time by the Board of Directors.
5. This Section 5 shall be deleted in its entirety.
7. Termination of Employment.
(d) Without Cause. Section 4(d) of the Agreement is hereby amended
to read in its entirety as follows:
Xxxxxx'x employment may be terminated by the Company at any time
without cause, effective upon one (1) month written notice of
termination and the Company shall be obligated to continue to pay
Xxxxxx as xxxxxxxxx an amount
equal to Xxxxxx'x salary and benefits (other than incentive
compensation amounts) for 18 months, payable under the same terms as
provided while Xxxxxx was an employee. Should Xxxxxx'x employment be
terminated by the Company without cause in connection with a "change
of control," the Company shall be obligated to pay to Xxxxxx within
30 days after the occurrence thereof, as severance and in lieu of
any and all other payments due under the Agreement (except such as
have accrued to the date of termination) an amount equal to two (2)
times the "base amount" paid to Xxxxxx in the "base period." The
terms "base amount" and "base period" shall have the meaning given
to them in Internal Revenue Code ("Code") Section 280G(b)(3)(A) and
Section 280G(d)(2), respectively, and the Regulations enacted
thereunder. In no event shall the aggregate amount payable to Xxxxxx
hereunder be such as to constitute an Excess Parachute Payment as
that term is used in Section 280G(b) of the Code. In the event the
aggregate payments due hereunder constitute an Excess Parachute
Payment, such payments as selected by Xxxxxx shall be reduced or
negated in sufficient amount as to render the aggregate of the
remaining payments not an Excess Parachute Payment. A "change of
control" shall mean the occurrence of an event which would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended.
9. Notices. This section is amended to provide that the address for Xxxxxx
shall be that which he provides to the Company upon execution of this Amendment
No. 1 and upon relocation of his principal residence. The address of the Company
shall be as follows:
Phoenix Footwear Group, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman
10. Governing Law. This section is replaced in its entirety with the
following:
This Agreement shall be interpreted in accordance with and governed
by the laws of Delaware, without regard to conflict of laws.
(a) Any controversy or claim arising out of or relating to this
Agreement, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association (the "Rules") in effect at the time demand for
arbitration is made by any party. A single arbitrator
acceptable to both parties shall determine the matter. In the
event that the single arbitrator is not agreed upon, he or she
shall be named by the American Arbitration Association.
Arbitration shall occur in San Diego, California. The award
made by the arbitrator shall be final and binding and judgment
may be entered in any court of law having competent
jurisdiction. The prevailing party shall be entitled to an
award of reasonable attorney's fees, costs and expenses
incurred in connection with the arbitration and any judicial
proceedings related thereto.
(b) In the event of any breach or threatened breach by Xxxxxx of
any of the provisions of Section 6 of the Agreement, the
Company shall be entitled to injunctive relief restraining
Xxxxxx or any business, firm, partnership, individual,
corporation or entity participating in such breach or
threatened breach. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies
available at law or in equity for such breach or threatened
breach, including the recovery of damages and the immediate
termination of the employment of Employee hereunder. If any of
the provisions of or covenants contained in Section 6 are
hereafter construed to be invalid or unenforceable in a
particular jurisdiction, the same shall not affect the
remainder of the provisions or the enforceability thereof in
that jurisdiction, which shall be given full effect, without
regard to the invalidity or unenforceability thereof in a
particular jurisdiction because of the duration and/or scope
of such provision or covenant in that jurisdiction and, in its
reduced form, said provision or covenant shall be enforceable.
In all other jurisdictions Section 6 shall at all times remain
in full force and effect. The obligations under this Section 6
shall survive any termination of this Agreement.
16. Entire Agreement. This section is amended to read in its entirety as
follows:
The Amended Agreement supersedes any and all prior discussions,
negotiations, employment and similar agreements, written and/or oral
between the Company and Xxxxxx. This Amendment No. 1 may be executed in
counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute Amendment No. 1 to the Agreement. This
Amendment No. 1 shall not become effective until completely conforming
counterparts have been signed and delivered by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Agreement the day and year first above set forth.
/s/ Xxxx Xxxx Xxxxxx
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Xxxx Xxxx Xxxxxx
PHOENIX FOOTWEAR GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Chairman & CEO
