EXHIBIT 10.2
SECOND AMENDMENT TO THE
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
DATED AS OF SEPTEMBER 17, 1997
BETWEEN
XXXXXX XXXX AND XXXXXXX INDUSTRIES, INC.
WHEREAS, Xxxxxx Xxxx ("Executive") and Xxxxxxx Industries, Inc. (the
"Company") have entered into an Amended and Restated Employment Agreement
effective as of September 17, 1997, as amended on June 21, 2004, (the
"Agreement"); and
WHEREAS, the parties now desire to amend the Agreement to eliminate the
discretionary cash bonus to be paid to the Executive each calendar year or part
thereof while the Executive is employed and provide that, in lieu thereof, the
Executive shall participate in the Company's performance-based Xxxxxxx
Industries, Inc. Annual Bonus Plan (the "Plan") while the Executive is employed.
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, effective as of the date of the Company's 2005
Annual Meeting of Stockholders, the Agreement is hereby amended as follows (this
amendment is hereinafter referred to as the "Second Amendment").
1. The text of Section 3(a)(ii) of the Agreement, is hereby deleted in its
entirety.
2. Sections 3(b) and 3(c) are restated as Sections 3(c) and 3(d),
respectively, and a new Section 3(b) is added as follows:
(b) The Executive shall be entitled to participate in the
Company's Annual Bonus Plan (the "Bonus Plan") each year
during which the Executive is employed and may be eligible to
earn a performance-based cash bonus (a "Performance-Based
Bonus") under the terms and conditions of such plan. Any
Performance-Based Bonus and/or annual discretionary bonus
earned, as applicable, by the Executive prior to
implementation of the Bonus Plan is hereafter referred to as a
"Bonus".
3. Should the Company's stockholders fail to approve the Plan at the
Company's 2005 Annual Meeting of Stockholders on May 5, 2005, then the Plan
shall cease to be effective and this Second Amendment shall not take effect, and
the Agreement shall be deemed to remain unchanged and continue in full force and
effect.
4. Except as expressly amended by this Second Amendment, the remaining
terms and provisions of the Agreement shall remain unchanged and continue in
full force and effect.
This Second Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Company has caused its name to be ascribed to this
Second Amendment by its duly authorized representative and Executive has
executed this Second Amendment as of the 17th day of February, 2005.
XXXXXXX INDUSTRIES, INC.
BY: /s/ Xxxxxxx X. X'Xxxxx
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NAME: Xxxxxxx X. X'Xxxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
