EXHIBIT 10.1
FIRST AMENDMENT TO CONSULTING AGREEMENT
This First Amendment to Consulting Agreement is made as of this 30th day
of March 1999 between Binks Xxxxx Corporation ("BSC") and The Xxxxx-Xxxxxxxx
Company ("Consultant").
WHEREAS, BSC and Consultant entered into a Consulting Agreement dated as
of October 1, 1998 (the "Agreement") and desire to amend such Agreement as
set forth herein;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants herein, BSC and Consultant hereby agree as follows:
1. Paragraph 3 of the Agreement is hereby amended to increase the
monthly fee paid to Consultant from $25,000.00 to $33,333.33 per month from
and after the date hereof.
2. The following provision shall be included at the end of Paragraph 5
of the Agreement:
Notwithstanding any other term of this Agreement, Consultant
shall not be able to terminate this Agreement without "good
reason" (as defined herein) prior to April 1, 2000.
3. The first two sentences of Paragraph 12 of the Agreement shall be
amended and restated as follows:
In the event of a Change of Control (as hereinafter defined)
after the Commencement Date hereof, BSC shall, simultaneously
with the Change of Control, pay to Consultant all amounts due to
and including the date of that Change of Control, shall remain
obligated to provide the Director and Officer Liability Insurance
provided by Paragraph 6 and, in addition, shall, within five (5)
business days after the date of the Change of Control, pay
Consultant a lump sum payment in an amount equal to $500,000.00
PLUS an amount equal to twelve (12) times the sum of (i) the most
recent monthly medical premiums reimbursed by BSC pursuant to
Paragraph 4(b) above and (ii) the $600.00 monthly car allowance
described in Paragraph 4(c) above (the "Pre-Termination
Payment"). In the event of a Change in Control at any time
within the six (6) month period following termination of this
Agreement (i) by BSC for reasons other than "cause", or (ii) by
Consultant for "good reason", BSC shall, within five (5) business
days after the date of the Change of Control, pay Consultant a
lump sum payment in an amount equal to $250,000.00 PLUS an amount
equal to six (6) times the sum of (i) the most recent monthly
medical premiums reimbursed by BSC pursuant to
EXHIBIT 10.1
Paragraph 4(b), above, and (ii) the $600.00 monthly car allowance
described in Paragraph 4(c) above (the "Post-Termination Payment").
4. The following provisions shall be included at the end of Paragraph
12 of the Agreement:
Notwithstanding the first sentence of this Paragraph 12, in the
event the per share purchase price received by the Stockholders
of the Company in connection with a Change in Control (the "Per
Share Stock Payment") is greater than $25.25 per share (the
"Target Amount"), the Pre-Termination Payment shall be reduced by
$12,500 for each $0.125 by which the Per Share Stock Payment
exceeds the Target Amount; provided, however, the maximum
reduction in the Pre-Termination Payment pursuant to this
sentence shall be $200,000.00. Notwithstanding the second
sentence of this Paragraph 12, in the event the Per Share Stock
Payment is greater than the Target Amount, the Post-Termination
Payment shall be reduced by $12,500.00 for each $0.125 by which
the Per Share Stock Payment exceeds the Target Amount; provided,
however, the maximum reduction in the Post-Termination Payment
pursuant to this sentence shall be $100,000.00.
5. In recognition of Consultant's service to the Company and the
entering into of this First Amendment, on the date hereof the Company shall
make a loan advance to Consultant in the amount of $150,000.00 which shall be
earned and forgiven on October 1, 1999; provided, however, if on or prior to
October 1, 1999 (i) the Company terminates the Agreement for "cause" (as
defined in the Agreement) or (ii) the Consultant terminates the Agreement
without "good reason" (as defined in the Agreement) Consultant shall promptly
repay such $150,000 loan advance to the Company, and such repayment shall not
be subject to any claim or right of set-off by the Consultant.
6. All capitalized terms which are not defined herein shall have the
same meaning as set forth in the Agreement.
7. Except as amended by this Amendment, the terms of the Agreement
shall remain in full force and effect. In the event the terms of the
Agreement should conflict with this Amendment, the terms of the Amendment
shall control.
8. This Amendment may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement. Any facsimile
of this instrument shall be considered an original document.
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EXHIBIT 10.1
IN WITNESS WHEREOF, this Amendment has been executed and delivered as of
the date first above written.
THE XXXXX-XXXXXXXX COMPANY:
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Its: President
BINKS XXXXX CORPORATION:
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Its: Chairman of the Board
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