Exhibit 10.1
[Xxxxxx Xxxxxxx] [Logo Omitted]
December 13, 2005
Xx. Xxxx X. Xxxx
c/x Xxxxxx Xxxxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxx,
This letter agreement clarifies certain provisions of the amended and
restated employment agreement dated as of September 20, 2005 (the "Employment
Agreement") by and between you and Xxxxxx Xxxxxxx (the "Company") in light of
your (i) requesting that your bonus in respect of fiscal year 2005 be prorated
for the period you were employed by the Company during the year and
recommending that it be awarded 100% in the form of equity compensation (i.e.,
zero cash) and (ii) entering into an agreement dated November 22, 2005
relating to the notice period and restrictive covenants applicable to you (the
"Restrictive Covenant Agreement"). In connection with the foregoing, you and
we agree as follows:
1. Your receipt of 100% of your bonus in respect of fiscal
year 2005 in the form of equity compensation under the
Company's Equity Incentive Compensation Plan shall not
constitute Good Reason under the Employment Agreement.
2. Should there be any inconsistency between the provisions
in the Employment Agreement (including any provisions
incorporated by reference) and the provisions in the
Restrictive Covenant Agreement as such provisions relate
to the time period for the provision of advance written
notice of termination by either the Company or by you or
the duration of any non-solicitation covenant, the
provisions of the Restrictive Covenant Agreement shall
prevail and, notwithstanding any provision of Section
3(b)(iii) of the Employment Agreement, said provisions of
the Restrictive Covenant Agreement may be incorporated
into equity-based awards under the Company's equity
compensation plans in respect of fiscal year 2005 or
granted at any time in the future; provided, however,
that if you terminate your employment for Good Reason
under the Employment Agreement, then you will not be
required for any purpose to provide 180 days advance
written notice (provided that you otherwise comply with
the provisions of Sections 4(c), 4(e) and 4(f) of the
Employment Agreement).
3. Should there be any inconsistency between the provisions
in the Employment Agreement and the provisions in the
Restrictive Covenant Agreement as such provisions relate
to the definition of "Cause" and the consequences of the
termination of your employment without "Cause", the
provisions of the Employment Agreement shall prevail.
4. References to "Total Compensation" in Section 5(a) of the
Employment Agreement shall mean Total Compensation on an
annualized basis.
5. Except as specifically amended above, all of the terms
and provisions of the Employment Agreement and the
Restrictive Covenant Agreement shall remain in full force
and effect.
We ask that you confirm your willingness to accept the foregoing by
signing and dating this letter in the area designated below and returning the
letter agreement to me.
/s/ Xxxxx X. Xxxxxxxx
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By: Xxxxx X. Xxxxxxxx
Title: H.R. Director
Confirmed and Agreed to:
/s/ Xxxx X. Xxxx
---------------------------------
Xxxx X. Xxxx
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