EXHIBIT 10(c)
AMENDMENT TO PERSONAL SERVICES AGREEMENT
This Amendment (this "AMENDMENT") to that certain Personal Services
Agreement and Acknowledgment of Termination of Executive Employment (the
"PERSONAL SERVICES AGREEMENT") is effective as of January 1, 1999 by and between
Xxxxxxxx, Inc., a Delaware corporation (the "COMPANY") and Xxxxxx X. Xxxxxxx
("XXXXXXX").
BACKGROUND
X. Xxxxxxx retired from his position as Chairman of the Board of
Directors of the Company effective December 31, 1998.
B. The Personal Services Agreement provides, among other things, that
(i) Xxxxxxx will provide consulting services to the Board of Directors of the
Company and (ii) all options held by him shall become immediately exercisable
for a five-year period.
X. Xxxxxxx holds an option granted on October 2, 1993 under the Company's
Amended and Restated Incentive Stock Option Plan (the "INCENTIVE PLAN") which
may not, by its terms and the terms of the Incentive Plan, remain exercisable
for a five-year post-retirement period (i.e., until December 31, 2004).
D. The parties wish to (i) terminate the option granted to Xxxxxxx on
October 2, 1993 under the Incentive Plan, (ii) amend the terms of the Personal
Services Agreement to exclude such option from the list of options to be
exercisable for the five-year post-retirement period, and (iii) grant a new
option to Xxxxxxx under the Company's Amended and Restated Nonqualified Stock
Option Plan (the "NONQUALIFIED PLAN").
NOW, THEREFORE, the parties agree as follows:
1. TERMINATION OF OPTION. All outstanding stock options granted by the
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Company to Xxxxxxx under the Incentive Plan on October 2, 1993 are hereby
terminated to the extent they have not yet been exercised. The parties
acknowledge that one stock option to purchase 11,764 shares of the Company's
Common Stock at an exercise price of $8.50 per share is terminated by this
Section 1.
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2. AMENDMENT TO PERSONAL SERVICES AGREEMENT.
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a. Section 8 (Stock Options) of the Personal Services Agreement is
hereby deleted in its entirety and the following is inserted in lieu thereof:
"8. Stock Options. All options held by Xxxxxxx shall become immediately
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exercisable for a period of five years pursuant to the terms of the
1995 Agreement. The following is a list of the options:
GRANT DATE OPTION PRICE NO. OF SHARES
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10/02/93 $ 8.50 133,236
01/22/96 $ 6.50 15,384
01/22/96 $ 6.50 5,241
11/11/97 $10.1875 1,132
11/11/97 $10.1875 18,868
11/11/97 $10.1875 9,815
11/11/97 $10.1875 10,185
11/11/97 $10.1875 9,815
11/11/97 $10.1875 10,185
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Total Options 213,861."
b. Except as expressly set forth in this Amendment all other terms of
the Personal Services Agreement shall remain in full force and effect.
3. GRANT OF OPTION.
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a. The Company hereby grants to Xxxxxxx a stock option (the "OPTION")
under the Nonqualified Plan to purchase shares of the Company's Common Stock
upon the following terms and conditions:
Option Grant Date: January 1, 1999
Maximum Number of Shares of Common
Stock Issuable Upon Exercise of Option: 11,764
Purchase Price Per Share: $8.50
Vesting Schedule: Fully Vested
Expiration Date: December 31, 2004
x. Xxxxxxx has received a copy of the Nonqualified Plan. This
Section 3 is subject in all respects to the applicable provisions of the
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Nonqualified Plan, which are incorporated herein by reference. In the case of
any conflict between the provisions of the Nonqualified Plan and this Section 3,
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the provisions of the Nonqualified Plan shall control.
4. GOVERNING LAW. This Agreement shall be governed by, interpreted
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under, and construed and enforced in accordance with the internal laws, and not
the laws pertaining to conflicts or choice of laws, of the State of California
applicable to agreements made or to be performed wholly within the State of
California.
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5. COUNTERPARTS. This Amendment may be executed in any number of
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counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
6. FACSIMILE. This Amendment may be executed and delivered by facsimile
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and, upon such execution and delivery, shall have the same force and effect as
an originally executed instrument.
IN WITNESS WHEREOF, the Company and Xxxxxxx have executed this
Agreement effective as of the date first above written.
XXXXXXXX, INC.,
A DELAWARE CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
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