FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "First Amendment"), is entered into effective as of this 30th day of December, 2008, by and between XXXXXXXX CORPORATION, an Iowa corporation (the "Company"), and XXXXXXX X. XXXX (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive previously entered into a Employment Agreement, dated as of January 30, 2006, (the "Employment Agreement");
WHEREAS, the Company desires to amend said Employment Agreement to conform with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the Company and the Executive hereby agree that the Employment Agreement shall be amended as set forth below:
1. Subsection 7.2 of the Employment Agreement is hereby amended and restated in its entirety as follows:
7.2 In addition to benefits described in Section 7.1 during the Term of this Agreement, Xxxx shall also receive or participate in, to the extent permitted by law, the various perquisites and plans generally available to officers of the Company in accordance with the provisions thereof as in effect from time to time including, without limitation, the following perquisites to the extent the Company continues to offer them: an automobile or automobile allowance, country club dues, dining club dues, tax and estate planning, supplemental medical plan and executive life insurance (if insurable). All such reimbursements or in-kind benefits shall be payable by the Company on or before the last day of Xxxx'x taxable year following the taxable year in which the expense was incurred. The expenses paid or in-kind benefits provided by the Company during any taxable year of Xxxx will not affect the expenses paid or in-kind benefits provided by the Company in another taxable year. This right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. In addition, Xxxx shall participate in the Meredith Replacement Benefit Plan and the Meredith Supplemental Benefit Plan.
2. Section 8 of the Employment Agreement is hereby amended and restated in its entirety as follows:
8. Expense Reimbursements.
During Xxxx'x employment with the Company, Xxxx will be entitled to receive reimbursement by the Company for all reasonable, out-of-pocket expenses incurred by him (in accordance with policies and procedures established by the Company), in connection with his performing services hereunder, provided Xxxx properly accounts therefor. All such reimbursements shall be payable by the Company on or before the last day of Xxxx'x taxable year following the taxable year in which the expense was incurred. The expenses paid by the Company during any taxable year of Xxxx will not affect the expenses paid by the Company in another taxable year. This right to reimbursement is not subject to liquidation or exchange for another benefit.
3. Subsections 9.1, 9.2, 9.4 and 9.6 of the Employment Agreement are hereby amended and restated in their entirety as follows:
9.1 Death. In the event of the death of Xxxx during the Term of this Agreement or during the period when payments are being made pursuant to Sections 6 or 9.2, this Agreement shall terminate and all obligations to Xxxx shall cease as of the date of death except that, (a) the Company will pay to the legal representative of his estate in substantially equal installments the Base Salary until the end of the month of the first anniversary of Xxxx'x death with each installment treated as a separate "payment" for purposes of Section 409A of the Code, such that any payment that would otherwise be payable within 2 1/2 months after Xxxx'x taxable year in which his employment with the Company is terminated or, if later, within 2 1/2 months after the end of the Company's taxable year in which Xxxx'x employment with the Company is terminated (the "Short Term Deferral Period") is exempt from Section 409A of the Code, and (b) all rights and benefits of Xxxx under the benefit plans and programs of the Company in which Xxxx is a participant, will be provided as determined in accordance with the terms and provisions of such plans and programs. Any bonus (or amounts in lieu thereof) pursuant to Section 5, payable for the fiscal year in which Xxxx'x death occurs, shall be determined by the Compensation Committee at its meeting following the end of such fiscal year pro rata to the date of death and promptly paid to Xxxx'x estate. All awards of restricted stock, stock options and any other benefits under the Long-Term Incentive Plans shall be handled in accordance with the terms of the relevant plan and agreements entered into between Xxxx and the Company with respect to such awards.
9.2 Disability. If Xxxx shall become permanently incapacitated by reasons of sickness, accident or other physical or mental disability, as such incapacitation is certified by a physician chosen by the Company and reasonably acceptable to Xxxx (if he is then able to exercise sound judgment), and shall therefore be unable to perform any substantial gainful activity, then the employment of Xxxx hereunder and this Agreement may be terminated by Xxxx or the Company upon thirty (30) days' written notice to the other party following such certification. Should Xxxx not acquiesce (or should he be unable to acquiesce) in the selection of the certifying doctor, a doctor chosen by Xxxx (or if he is not then able to exercise sound judgment, by his spouse or personal representative) and reasonably acceptable to the Company shall be required to concur in the medical determination of incapacitation, failing which the two doctors shall designate a third doctor whose decision shall be determinative as of the end of the calendar month in which such concurrence or third-doctor decision, as the case may be, is made. After the final certification is made and the 30-day written notice is provided, the Company shall pay to Xxxx, at such times as Base Salary provided for in Section 3 of this Agreement would normally be paid, 100% of Base Salary for the first twelve months following such termination, 75% of Base Salary for the next twelve-month period and 50% of Base Salary for the remaining period of what would have constituted the current Term of employment but for termination by reason of disability with each installment treated as a separate "payment" for purposes of Section 409A of the Code, such that any payment that would otherwise be payable during the Short Term Deferral Period is exempt from Section 409A of the Code. Following the termination pursuant to this Section 9.2, the Company shall pay or provide to Xxxx such other rights and benefits of participation under the employee benefit plans and programs of the Company to the extent that such continued participation is not otherwise prohibited by applicable law or by the express terms and provisions of such plans and programs. Furthermore, nothing contained in this Section 9.2 shall preclude Xxxx from receiving the benefit of his target MIP bonus for the initial year in which a short-term disability occurs pursuant to the provisions of Section 6. All benefits provided under this Section 9.2 shall be in replacement of and not in addition to benefits payable under the Company's short-term and long-term disability plans, except to the extent such disability plans provide greater benefits than the disability benefits provided under this Agreement, in which case the applicable disability plan(s) would supersede the applicable provisions of this Agreement. All awards of restricted stock, stock options and any other benefits under the Long-Term Incentive Plans shall be handled in accordance with the terms of the relevant plan and agreements entered into between Xxxx and the Company with respect to such awards.
9.4 Without Cause. The other provisions of this Agreement notwithstanding, the Company may terminate Xxxx'x employment, remove him as an officer and director and terminate this Agreement at any time for whatever reason it deems appropriate, with or without cause and with or without prior notice. In the event of such a termination of Xxxx'x employment and this Agreement, Xxxx shall have no further obligations of any kind under or arising out of the Agreement (except for the obligations of Xxxx under Section 10) and the Company shall be obligated only to promptly pay Xxxx within the Short Term Deferral Period the following in a lump sum payment: (a) Base Salary and the target MIP bonus amounts provided in Section 5 of this Agreement through the end of the then current Term of this Agreement (the "Remaining Term") as provided for under Section 2 of this Agreement, but no less than a total of twenty-four months of Base Salary and target bonus under the MIP or successor plans; and (b) any other amounts due and owing not then paid; provided, however, that in the event that as a result of such termination of employment Xxxx would otherwise be entitled to a severance payment (a "Change of Control Severance Payment") under Section 4 of the Amended and Restated Severance Agreement dated as of the 30th day of December, 2008, between Xxxx and the Company, (the "Severance Agreement"), Xxxx shall be entitled to the amounts described in clause (b) above and the greater of: (i) the cash severance benefits described in clause (a) of this sentence and (ii) the cash severance benefits described in Section 4(a) of the Severance Agreement, but in no event to both payments.
After the date of termination under this Section 9.4 or Section 9.6, Xxxx shall not be treated as an employee for purposes of the Company's employee benefit plans or programs even though he may continue to receive payments as provided in this Section 9.4, except: that Xxxx and his eligible dependents shall continue, to the extent permitted by law, to be covered by health and welfare insurance plans or programs in which Xxxx and his eligible dependents participate immediately prior to Xxxx'x termination of employment for the Remaining Term; provided, however, that if during such time period Xxxx should enter into employment with a new employer and become eligible to receive comparable insurance benefits, the continued insurance benefits described herein shall automatically cease. In the event that Xxxx is ineligible, for whatever reason, to continue to be so covered with respect to any of the above-referenced plans or programs, the Company shall provide substantially equivalent coverage through other sources (determined on an after-tax basis). In the event Xxxx would otherwise be entitled to a Change of Control Severance Payment under the Severance Agreement as a result of a termination of employment under this Section 9.4, Xxxx may elect to receive the continued health and welfare insurance benefits under this Section 9.4 or under Section 4(b) of the Severance Agreement, but in no event both benefits.
Furthermore, in the event of a termination Without Cause, Xxxx shall be presumed to have met eligibility requirements specified in Section 2.4 of the Meredith Replacement Benefit Plan and the Meredith Supplemental Benefit Plan or any successor thereto. He shall be presumed to have met eligibility requirements for the Company's Retiree Health Care coverage at end of the Term provided, however, that if subsequent to such termination Xxxx should enter into employment with another employer and become eligible for health insurance benefits, Xxxx'x eligibility for Retirement Health Care coverage shall automatically cease. All awards of restricted stock and stock options shall automatically vest and be exercisable for the full unexpired term of the option.
Xxxx agrees that the payments described in this Section 9.4 shall be full and adequate compensation to Xxxx for all damages Xxxx may suffer as a result of the termination of his employment pursuant to this Sections 9.4 or 9.6, and in consideration of the payments and benefits provided in this Section 9.4, Xxxx agrees to execute a Waiver and Release Agreement in the form attached hereto as Attachment A; provided, however, that, except as specifically provided for under this Section 9.4, any rights and benefits Xxxx may have under the employee benefit plans and programs of the Company, in which Xxxx is a participant, shall be determined in accordance with the terms and provisions of such plans and programs.
9.6 Failure to Re-elect as Chief Executive Officer or Director. If at any time prior to the end of the Term of this Agreement Xxxx is not re-elected to or is removed from the office of Chief Executive Officer or as a Director of the Company or the Company materially violates Section 1.1 of this Agreement (for reasons other than Due Cause), Xxxx shall have the right to terminate his employment with the Company after first giving the Company written notice of the violation within ninety (90) days of its initial existence and providing a period of thirty (30) days in which the violation may be cured and by thereafter, if such violation has not been corrected or cured, by giving written notice within ninety (90) days of his termination, and such termination shall be deemed to be termination by the Company without "Due Cause," and such termination shall be treated in accordance with the terms of Section 9.4 above.
4. The Employment Agreement, as amended by this First Amendment, is, and shall continue to be and remain, in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly authorized officer of the Company and the Executive has executed this Amendment as of the day and year first above written.
| XXXXXXXX CORPORATION | EXECUTIVE |
| By:_/s/ Xxxx X. Xxxxxx | /s/ Xxxxxxx X. Xxxx _____ |
| Xxxx X. Xxxxxx, Chief Development | Xxxxxxx X. Xxxx |
| Officer, General Counsel and Secretary |
