AMENDMENT TO
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
This Amendment is made to that certain Amended and Restated Change in
Control Agreement (the "Agreement") dated as of March 1, 2001 between Xxxxxx
Financial, Inc., a Delaware corporation (the "Company"), and _______________
(the "Executive"). Capitalized terms used but not otherwise defined herein have
the respective meanings given to them in the Agreement.
The Company and the Executive hereby agree that Section 5 of the
Agreement shall be deleted in its entirety and that the following new Section 5
shall be added in substitution therefor:
"5. Limitation on Company Payments and Certain Tax Gross-Up.
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(a) Notwithstanding any provision of this Agreement to the
contrary, the aggregate cash payments (excluding the value
realized from the acceleration of unvested option or
restricted stock grant) made by or on behalf of the Company or
any Affiliate to or for the benefit of the Executive (whether
paid or payable pursuant to the terms of this Agreement or
otherwise) as a result of a Change in Control will not exceed
2.99 times the sum of (i) the Executive's annual Base Salary
plus (ii) the then most recent amount of the annual incentive
compensation payment made to the Executive under the Xxxxxx
Performance Plan (or any successor plan) prior to the Change
in Control plus (iii) the amount equal to the cash value of
the incentive compensation (whether such incentive
compensation was paid in cash or restricted stock) then most
recently made under any of the Company's long-term incentive
plans prior to the Change in Control, in each of the foregoing
cases regardless of whether or not such cash payment or
restricted stock distribution has been deferred under the
Company's Executive Deferred Compensation Plan (or any
successor or similar plan).
(b) If the aggregate payments and distributions to be made
by or on behalf of the Company or an Affiliate to or for the
benefit of the Executive (whether pursuant to the terms of
this Agreement or otherwise and including the accelerated
vesting of any equity-based awards or other compensation, but
determined without regard to any additional payments required
under this Section 5) as a result of a Change in Control would
subject the Participant to an excise tax (and any interest and
penalties incurred by the Executive with respect to such
excise tax) under Section 4999 of the Code, the Company will
pay the Executive, in addition to amounts otherwise payable
under this Agreement, a gross-up payment equal to the excise
tax the Executive must pay (including any interest and
penalties with respect thereto), plus the amount necessary to
pay all federal, state, local, excise, and payroll taxes (and
any interest and
penalties imposed thereon) that will be assessed on the
gross-up payment itself.
(c) Within ten days after Employment Termination, the
Company will provide the Company and the Executive with the
determination of the operation of the 2.99 limitation as
contemplated by this Section, the amount of the gross-up
payment relating thereto, if any, and detailed supporting
calculations and documentation. The Executive will have the
right to accept the determination, or to have the
determination reviewed by an accounting firm selected by the
Executive, at the Company's expense. The determination of the
accounting firm will be binding, final and conclusive on the
Company and the Executive. The Company will pay the gross-up
payment finally determined under this Section to the Executive
within fifteen days after it is finally determined."
As amended hereby, the Agreement is ratified and confirmed.
IN WITNESS WHEREOF, the parties have executed this Amendment as of May
15, 2001.
Xxxxxx Financial, Inc.
By:___________________________ ________________________
Xxxxxxx X. Xxxxxxx The Executive
Chairman and Chief Executive Officer