AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this "Agreement"), made as of December 18, 1997 is by and among
INSIGNIA FINANCIAL GROUP, INC., a Delaware corporation with an office at One
Insignia Financial Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(the "Company"), INSIGNIA COMMERCIAL GROUP, INC., a Delaware corporation with an
office at One Insignia Financial Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, ("ICG"), INSIGNIA\Xxxxxx X. Xxxxxx Co., Inc., a Delaware
corporation with an office at One Insignia Financial Xxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Insignia\ESG") and XXXXXXX X. XXXXXX,
an individual residing at 000 Xxxx 00xx Xxxxxx, XX, XX 00000 (the "Executive").
Background
The Company and certain of its affiliates and the Executive entered
into an Amended and Restated Employment Agreement dated as of January 1, 1997
(the "Original Agreement"). The Company and such affiliates and the Executive
now desire to amend the Original Agreement.
Statement of Agreement
In consideration of the foregoing, the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Defined Terms. Capitalized terms used in this Agreement
but not otherwise defined herein shall have the meanings ascribed thereto
in the Original Agreement.
Section 2. Amendment of Section 1 of the Original Agreement. Section 1 of
the Original Agreement is hereby amended by deleting "December 31, 1999" and
inserting in its place "December 31, 2002".
Section 3. The following new Sections 20, 21 and 22 are hereby added to the
Original Agreement:
Section 20. Loan. The Company shall make an unsecured loan to
the Executive in the principal amount of $1,000,000 (the
"Loan"), which Loan shall be upon the terms and conditions set
forth in, and shall be evidenced by, the Note attached as
Exhibit A hereto and hereby made a part hereof (the "Note"),
which Loan shall be made to the Executive upon the demand of
the Executive and the Executive's execution of this Agreement
and the Note and delivery of this Agreement and the Note to
the Company.
Section 21. Term Life Insurance. The Company shall purchase
term life insurance, providing a death benefit of $5,000,000,
upon the life of the Executive, the beneficiaries of which
shall be designated by the Executive and which term life
insurance shall be upon terms and conditions, and in form and
substance, available at the time, and otherwise reasonably
satisfactory to the Executive and which term life insurance
shall be maintained by the Company during the Employment
Period at the Company's sole cost and expense; provided
however the Company shall only be required to purchase such
life insurance to the extent that it is commercially
reasonably available.
Section 22. Key Man Life Insurance. The Company shall provide
"Key man" life insurance, providing a death benefit of
$15,000,00 upon the death of the Executive, for which the
Company is the beneficiary (the "Key Man Insurance Policy").
In connection therewith, the Executive hereby authorizes the
Company, at its sole cost and expense, to purchase and
maintain upon the life of the Executive such insurance policy,
and agrees to submit to such medical examinations, and to
provide and/or consent to the release of such medical
information, as may be necessary or desirable in order to
secure the issuance thereof.
Section 4. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt to the party to whom it
is to be given, at the address of such party set forth in the preamble of this
Agreement (or to such other address as such party shall have furnished in
writing in accordance with the provisions of this Section). Notice to the Estate
shall be sufficient if addressed to the Executive as provided in this Section.
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed at the time of receipt thereof.
Section 5. Waiver. Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed to be a waiver of any
other breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be in writing.
Section 6. Binding Effect. The Executive's rights and obligations under
this Agreement shall not be transferable by assignment or otherwise, such rights
shall not be subject to commutation, encumbrance or the claims of the
Executive's creditors, and any attempt to do any of the foregoing shall be void.
The provisions of this Agreement shall be binding upon and inure to the benefit
of the Executive and his heirs and personal representatives, and shall be
binding upon and inure to the benefit of the Company and its successors.
Section 7. Thirty Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement.
Section 8. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
Section 9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to the conflict of law provisions hereof.
Section 11. Affirmation. The parties hereto agree that the Original
Agreement and all of the terms, covenants and agreements contained therein, as
amended hereby, is in full force and effect on and as of the date hereof.
Section 12. Acknowledgment. The Executive acknowledges and agrees that the
valuable benefits created by this Agreement in favor of the Executive shall
constitute additional good and valuable consideration, above and beyond the good
and valuable consideration already provided under the Original Agreement
notwithstanding this Agreement, for the agreements, covenants, duties and other
obligations of the Executive under this Agreement and the Original Agreements.
The Executive further acknowledges and agrees that the total consideration
provided under the Agreement, as amended hereby, for his agreements, covenants,
duties and other obligations under the Original Agreement is fair and adequate.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
INSIGNIA FINANCIAL GROUP, INC.
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chairman & COO
INSIGNIA/XXXXXX X. XXXXXX CO., INC.
By: /s/Xxxx X. Lines
Name: Xxxx X. Lines
Title: Secretary
INSIGNIA COMMERCIAL GROUP, INC.
By: /s/Xxxxxxx X. xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
/s/Xxxxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
