EXHIBIT 10.61
AMENDMENT NO. 1 to
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") dated as of March 28, 2001, entered
into by and among Xxxx.xxx Inc., a Delaware corporation (the "Company"), and
Xxxxxx Xxxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, the Company and Employee are parties to an Employment
Agreement dated as of December 16, 1998 (the "Agreement") pursuant to which the
Company employs Employee as its Senior Vice President, Business Development; and
WHEREAS, the Company and Employee desire to amend the Agreement as
provided herein.
NOW THEREFORE, in consideration of the foregoing, the mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned hereby agree as
follows:
1. Section 2 of the Agreement is hereby amended in its entirety to read as
follows:
"2. TERM OF AGREEMENT. The term of Employee's employment hereunder shall
commence on December 28, 1998 (the date when Employee commences employment
hereunder, the "Commencement Date") and shall continue in effect for a period of
six years thereafter, except as hereinafter provided (the "Term")."
2. Section 4.1 of the Agreement is hereby amended in its entirety to read as
follows:
"4.1 BASE SALARY. During the Term, Company shall pay to Employee a base salary
("Base Salary") at the rate of two hundred fifty thousand dollars ($250,000) per
year, which Base Salary shall be paid to Employee in accordance with the
Company's usual and customary payroll practices."
3. The Agreement is hereby amended to add the following after Section 4.6:
4.7 TERMINATION AFTER CHANGE IN CONTROL.
4.7.1 If a Change of Control shall occur during the Term of
this Agreement, the term of Employee's employment hereunder shall continue in
effect until the later of the first anniversary of the date of the Change in
Control and the date that the Term would otherwise have terminated without
regard to the extension in this sentence, except for earlier termination as
provided in Section 6 of this Agreement. The rights and
obligations of Employee and Company under this Agreement upon or after any
termination of the Term shall survive any such termination.
4.7.2 Notwithstanding the provisions of Section 6 hereof,
if a Change in Control has occurred and Employee's employment hereunder is
terminated within one year of such Change in Control: (i) by Employee for Good
Reason or (ii) by Company without Cause, then Company shall (a) pay to Employee
the Base Salary and Benefits through the date of termination plus all amounts
due to Employee pursuant to any Due Bonus; (b) pay to Employee, as severance
pay, a lump sum amount equal to the sum of (x) twenty-four months' Base Salary
plus (y) an amount equal to the average annual incentive bonus earned by
Employee from Company during the last four (4) completed fiscal years of Company
preceding the date of Change in Control, or if Employee was not an officer
during any or all of such prior four (4) fiscal years, the average of the
incentives received during the fiscal years when Employee was such an officer;
(c) for a period of two years after the date of termination, arrange to provide
Employee with life, disability, sickness and accident, health, vision and dental
insurance benefits substantially similar to those that Employee was entitled
prior to the Change in Control, as well as with the other fringe benefits and
perquisites to which Employee was entitled pursuant to Section 4.3; and (d)
reimburse Employee for expenses that may have been incurred, but which have not
been paid as of the date of termination, subject to the requirements of Section
4.4 hereof."
4. The first sentence of Section 6 is hereby amended to read as follows:
"Except as provided in Section 4.7, in the event that Employee's employment
hereunder terminates prior to the end of the Term, Company shall make payments
to Employee as set forth below:"
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment as of the day and year first written above.
XXXX.XXX INC. EMPLOYEE
By: /s/ /s/
-------------------------------- ---------------------------------
Name: Xxxxxxxx X. Lawn IV Xxxxxx Xxxxxx
Title: EVP - General Counsel
and Secretary
2
