FIRST AMENDMENT TO CHANGE OF CONTROL, CONFIDENTIALITY
AND NONCOMPETE AGREEMENT
This First Amendment to Change of Control, Confidentiality and
Noncompete Agreement is entered into as of April 19, 1999, between Damark
International, Inc., a Minnesota corporation (including its subsidiaries, the
"Company"), located in Minneapolis, Minnesota, and Xxxxxxx X. Xxxxx, an
individual residing at 00000 00xx Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000
("Executive")
RECITALS:
A. The Executive and the Company have entered into a Change of
Control, Confidentiality and Noncompete Agreement dated February 19, 1999
(the "Original Agreement").
B. The Company and the Executive have agreed that certain
modifications of the Original Agreement are required in order to clarify the
period of applicability of the noncompete, nonsolicitation and nondisparagement
agreements of the Executive.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Executive agree as follows:
1. AMENDMENT OF RECITAL C OF THE ORIGINAL AGREEMENT. Recital C of
the Original Agreement is hereby deleted in its entirety and replaced by a new
Recital C to read as follows:
"C. The Company believes that it is important that it
receive certain assurances with respect to its Confidential
Information and the Executive's Work Product (each as defined
herein) and that the Company receive certain protections with
respect to the Executive's activities in the event his employment
is terminated following a Change in Control."
2. AMENDMENT OF PARAGRAPH 1(h) OF THE ORIGINAL AGREEMENT. Paragraph
1(h) of the Original Agreement is deleted in its entirety and replaced by a new
Paragraph 1(h) to read as follows:
(h) "Termination Date" means the date on which the
Executive ceases to be an employee of the Company if such date
occurs within (and including) 24 months after a Change in
Control."
3. AMENDMENT OF PARAGRAPH 10(a) OF THE ORIGINAL AGREEMENT. The
second sentence of Paragraph 10(a) of the Original Agreement is hereby amended
by deleting the phrase ",...from the date hereof until the first anniversary of
the Termination Date..." and inserting a new phrase to read as follows:
",...and in the event of a Change in Control, from the Termination Date until
the first anniversary thereof..."
4. AMENDMENT OF PARAGRAPH 10(b) OF THE ORIGINAL AGREEMENT. The
first sentence of Paragraph 10(b) of the Original Agreement is hereby amended
by deleting the phrase "The Executive covenants and agrees that during the
period commencing with the date of this Agreement and ending on the first
anniversary of the Termination Date,..." and inserting a new phrase to read as
follows: "The Executive covenants and agrees that during the period
commencing with the Termination Date and ending on the first anniversary
thereof,..."
5. CONTINUED EFFECT OF ORIGINAL AGREEMENT. Except as set forth
herein, the Original Agreement continues in full force and effect.
IN WITNESS WHEREOF, the undersigned have cause this Agreement to be
executed as of the day and year first above written.
DAMARK INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxx
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Its: Chairman/CEO
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EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
