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AMENDMENT NO. 1
TO
AGREEMENT
AMENDMENT NO. 1 dated April 27, 1997 to AGREEMENT made and entered
into the 27th day of January, 1984 (the "Agreement") by and between Xxxx Xxxxxx
Corporation, a Wisconsin corporation (herewith called the "Company") and Xxxxxx
X. Xxxxxxx, President, Chief Executive Officer and a director of the Company
(herewith called "Officer").
A. The parties have negotiated and reached agreement on certain
amendments to the Agreement.
B. The parties desire to set forth herein the amendments to the
Agreement. In consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Paragraph 2 of the Agreement is hereby amended so that as amended
Paragraph 2 shall read as follows:
Payment to the Officer. In the event that there shall be a Change of
Control of the Company at a time when the Officer shall be an active
director and employee of the Company, the Officer shall be entitled to
receive upon such Change of Control of Company the amount of $995,000
payable immediately in cash upon such Change of Control of the
Company.
2. The Agreement is further amended by adding Paragraph 6 to read as
follows:
Inadvertent Overpayments. The Company and Officer intend that any
payment made in accordance with Paragraph 2 of this Agreement not
result in an "excess parachute payment" under Section 280G of the
Internal Revenue Code of 1986, as amended ("Code") or any successor
provision of the Code (to the extent that Section 280G or any
successor provision are applicable to this Agreement). Accordingly,
and notwithstanding any other provision of this Agreement, if any
portion of a payment made in accordance with Paragraph 2 of this
Agreement, when considered in conjunction with any other payment or
benefit under any other agreement with or plan of the Company or an
affiliate of the Company (in the aggregate, "Total Payments") is
conclusively
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determined to constitute an "excess parachute payment", then the
maximum payment to which the Officer is entitled to under this
Agreement shall be reduced such that the value of the aggregate Total
Payments that the Officer is entitled to receive shall be One Dollar
($1) less than the maximum amount which the Officer could receive
without becoming subject to the tax imposed by Section 4999 of the
Code (or any successor provision) or which the Company may pay without
loss of deduction under Section 280G of the Code (or any successor
provision). The excess of the Total Payments over the maximum payment
described in the preceding sentence shall constitute a loan from the
Company to the Officer to be repaid to the Company with interest,
compounded semi-annually, at an annual rate equal to 120 percent of
the applicable Federal short-term rate under Section 1274 of the Code
as of the date on which the payment under Paragraph 2 of this
Agreement was made, or such other interest rate as the Internal
Revenue Service may require with respect to the repayment of
inadvertent overpayments.
3. Terms defined in the Agreement are used herein with their defined
meanings. Except as amended hereby the Agreement shall be and remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the day and year first above written.
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx ("Officer")
XXXX XXXXXX CORPORATION ("Company")
By /s/ XXXXXXX X. XXXXXX
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Senior Vice President
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