WMS INDUSTRIES INC. Waukegan, IL 60085
EXHIBIT
10.4
WMS
INDUSTRIES INC.
000 Xxxxx
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
July 1,
2008
Xx. Xxxxx
Xxxxxxxxxxxx
c/o WMS
INDUSTRIES INC.
000 Xxxxx
Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Dear
Xxxxx:
Reference
is made to the Executive Employment Agreement between you and WMS Industries
Inc., dated February 18, 2005, as amended (the “Employment
Agreement”). The Employment Agreement is hereby further amended as
follows:
1. The
phrase “Chief Executive Officer, President or the Board of Directors of the
Corporation” and the phrase “Chief Executive Officer, President and the Board of
Directors of the Corporation” in Paragraphs 2, 3 and 4.2 and elsewhere in the
Employment Agreement are modified to read “Chief Executive Officer or the Board
of Directors of the Corporation” and “Chief Executive Officer and the Board of
Directors of the Corporation”, respectively.
2. Section
4.4 of the Employment Agreement is hereby amended by adding the words “within 30
days after the date of Executive’s termination of employment,” at the beginning
of clause (i) in the first sentence of said section.
3. Section
4.4 of the Employment Agreement is further hereby amended by substituting the
following language as the introductory phrase to clause (ii) in the first
sentence of said section:
“within
30 days after the Corporation publicly announces its audited results for the
fiscal year in which the date of termination occurs, and in no event later than
the 15th day of
the third month following such fiscal year,”
4. Section
4.4 of the Employment Agreement is further hereby amended by substituting the
following language for clause (iii)(A) of said section:
“Executive’s
annual base salary on date of termination and”
5. Section
4.4 of the Employment Agreement is hereby further amended by adding the
following sentences at the end thereof:
“The
Corporation can only elect to accelerate any of the installment payments
required to be made pursuant to clause (iii) or the single lump sum payment to
be made pursuant to clause (iv) of the first sentence of this Section 4.4 that
would be paid on or before the later of (A) March 15th of the
calendar year following the calendar year in which Executive’s employment
terminates, or (B) the 15th day of
the third month following the fiscal year in which Executive’s employment
terminates. Each installment payable under clause (iii) of the first
sentence of this Section 4.4 shall be treated as the right to a series of
separate payments for purposes of the application of the requirements of Code
Section 409A.”
6. Section 6
of the Employment Agreement is hereby amended by adding the following sentence
thereto:
“The
amount of expenses eligible for reimbursement in a calendar year shall not
affect the expenses eligible for reimbursement in any other calendar
year.”
7. The
reference to the “President” in Paragraph 8 of the Employment Agreement is
changed to “Chief Executive Officer”.
8. The
phrase “and Gross-Up Payment” is added after the words “tax liability” in the
fourth sentence of Section 13.2.
9. Section
13.2 of the Employment Agreement shall be amended by adding the following two
new sentences after the end of the fourth sentence thereof:
“Payment
of the Gross-Up Payment shall be made by the Corporation within fifteen business
days following the later of (i) the Executive’s agreement with the Gross-Up
Payment and supporting calculations made by the Corporation’s Accounting Firm or
(ii) the final determination made by a nationally recognized public accounting
firm selected jointly by the Corporation’s Accounting Firm and the Executive’s
tax advisor, provided however that all Gross-Up Payments made pursuant to this
Section 13.2 shall be made no earlier than six months after the date of
Executive’s termination of employment. In all instances, all
Gross-Up
Xx. Xxxxx
Xxxxxxxxxxxx
July 1,
2008
Page
2
Payments
must be made no later than the last day of the taxable year of the Executive
following the taxable year of the Executive in which the Executive paid the
related taxes.”
10. The
amendments set forth in this letter agreement shall be effective as of July 1,
2008, notwithstanding any earlier date of execution of this letter agreement by
the parties. Except as expressly modified herein, the terms and
conditions of the Employment Agreement shall remain in full force and
effect.
Please
indicate your agreement to the foregoing by signing this letter in the place
provided below.
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Very
truly yours,
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WMS
INDUSTRIES INC.
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By:
/s/ Xxxxx X.
Xxxxxxx
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Xxxxx
X. Xxxxxxx
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Chief
Executive Officer
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Accepted
and Agreed to:
/s/ Xxxxx X.
Xxxxxxxxxxxx
Xxxxx X.
Xxxxxxxxxxxx
