Exhibit 10.38
AMENDMENT NO. 1 TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment No. 1 is made as of August 13, 2002, by and between Mercury
Air Group, Inc., a Delaware corporation (hereinafter referred to as "Employer"),
and Xx. Xxxxxx X. Xxxxxx (hereinafter referred to as "Employee").
WHEREAS, Employer and Employee entered into that certain Amended and
Restated Employment Agreement dated May 22, 2002 (as amended, the "Employment
Agreement"); and
WHEREAS, Employer and Employee wish to amend the Employment Agreement to
reflect the wishes of the Compensation Committee of Employer and amend (I)
Paragraph Eleventh section (a) Rights Following Termination Without Cause , (ii)
Paragraph Twelfth section (b) Rights Following Voluntary Termination After a
Change of Control and (iii) Paragraph Thirteenth Death During Employment both
in their entirety;
NOW, THEREFORE, the parties hereby agree to amend the Employment Agreement
as follows:
Eleventh: Termination Without Cause
(a) Rights Following Termination Without Cause. Should Employee be
discharged by Employer at any time during the term of this Agreement
except as provided in Article Tenth, Employer hereby agrees to: (i) pay
Employee within thirty (30) days from such discharge the Base Compensation
that would otherwise be paid to him over the remaining term of this
Agreement; and (ii) Employer shall pay to Employee a pro rated bonus for
the portion of the fiscal year during which he was employed prior to such
termination. For purposes of the foregoing pro ration, the bonus for the
fiscal year in which the termination occurs shall be calculated in
accordance with the terms of and on the schedule set forth in Article
Third of this Agreement. Following such calculation, the bonus for the
total fiscal year shall be multiplied by a fraction, the numerator of
which shall be the number of days in the fiscal year of termination during
which Employee was employed by Employer, and the denominator of which
shall be 365. The result of such calculation shall determine the pro rated
bonus paid to Employee
Twelfth : Rights to Voluntary Termination by Employee
(b) Rights Following Voluntary Termination After a Change of
Control. Following any voluntary termination of employment by Employee
pursuant paragraph (a) of this Article Twelfth, Employee shall be entitled
to be paid by Employer within thirty (30) days of such termination by
Employee, the entire balance of his Base Compensation remaining to be paid
to Employee over the full remaining term of this Agreement.
Thirteenth: Death During Employment
If Employee dies during the term of this Agreement, Employer shall
pay to
the estate of Employee the Base Compensation which would otherwise be
payable to Employee up to the end of the month in which his death occurs.
In addition, Employer shall maintain a life insurance policy or policies
providing Ten Million Dollars ($10,000,000) in death benefits payable to
Employee's estate or other designated beneficiary. Employee shall be
entitled to and the owner of the cash surrender value of all such
insurance policies in excess of the premiums paid by Employer (if any).
Notwithstanding any other provision of this Agreement, following any
termination of Employee's employment with Employer: (a) Employer shall
cease paying the premiums on any such life insurance policy and shall be
entitled to withdraw (or be paid by Employee in the form of a set-off
against any severance payments due or otherwise) its portion of the cash
surrender value of the life insurance policies; and (b) Employee shall be
entitled, in his discretion, to continue such policies for his benefit by
payment of the premiums and shall be entitled to the full cash surrender
value of such policies following withdrawal or repayment of Employer's
interest in the cash surrender value. Employee and Employer will execute
such assignments as are necessary to reflect this allocation of the death
and cash surrender values of any life insurance policies paid for by
Employer on the life of Employee.
All other terms and conditions of the Employment Agreement remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
MERCURY AIR GROUP, INC.
Xx. Xxxxxxx X. Xxxxx, Chairman of the Board
Xxxxxx X. Xxxxxx, Individually
