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EXHIBIT 10.26
AMENDMENT NO. 1
TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amendment is made and entered into this ___ day of
September, 1997 as of the Amendment Date (as defined below) by and between CMI
Industries, Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxx
(the "Executive").
Background Statement
Executive is the Executive Vice President and Chief Financial
Officer of the Company. The parties hereto are parties to an Amended and
Restated Employment Agreement dated as of January 1, 1996 (the "Existing
Employment Agreement," and as amended hereby, the "Employment Agreement," the
terms defined therein being used herein as therein defined unless otherwise
defined herein). The Existing Employment Agreement provides that it will expire
on December 31, 1997 if either Executive or the Company gives notice of
nonrenewal on or before October 1, 1997. The parties desire to enter into this
Amendment to provide for an extension of the term of, and to otherwise modify in
certain respects, the Existing Employment Agreement.
Agreement
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Amendments. The Existing Employment Agreement is hereby
amended effective as of October 1, 1997 (the "Amendment Date") as follows:
a. Paragraph 3 is hereby amended to delete
therefrom each reference to the Effective Date and to substitute in
lieu of each such reference the phrase "Amendment Date", so that the
Initial Period shall be for a period of two years commencing on the
Amendment Date.
b. Paragraph 4(a) is hereby amended to delete
therefrom the reference "$225,000" and to substitute in lieu thereof
"$250,000".
c. Paragraph 4(b) is hereby amended to delete
therefrom the second sentence thereof in its entirety and to substitute
in lieu thereof the following:
"So long as the current plan is in effect and has not been
modified,
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the maximum amount of incentive compensation that Executive
shall be entitled to receive, as a percentage of Base Salary,
shall be the greater of 50% or the maximum specified in the
plan."
d. Paragraph 4 is hereby amended to include
therein the following subparagraph 4(e), which shall appear immediately
following subparagraph 4(d):
"(e) Special Compensation. (i) If during the Period (or
within 6 months after the expiration thereof while Executive
is employed by the Company) a Change of Control (as defined in
subparagraph 6(e) below) occurs, then Executive shall be
entitled to receive an amount equal to the applicable amount
shown below for the Transaction Value (as defined below) of
the Change of Control per share of Common Stock outstanding
immediately prior to the occurrence of the Change of Control:
Per Share Amount to
Shareholders of
Transaction Value Amount of Special Compensation
Greater than $40 but less $21,000 for each $1.00 of Transaction Value
than or equal to $45 in excess of $40, plus, if the Transaction
Value is not a whole dollar, a proportionate
amount of $21,000 to reflect the fraction of
a $1.00 included in the Transaction Value
Greater than $45 but less $105,000, plus $35,000 for each $1.00 of
than or equal to $50 Transaction Value in excess of $45, plus,
if the Transaction Value is not a whole
dollar, a proportionate amount of $35,000
to reflect the fraction of a $1.00 included
in the Transaction Value
Greater than $50 $280,000, plus $49,000 for each $1.00 of
Transaction Value in excess of $50, plus,
if the Transaction Value is not a whole
dollar, a proportionate amount of $49,000
to reflect the fraction of a $1.00 included
in the Transaction Value
"Transaction Value" shall mean an amount equal to the sum of
the aggregate fair market value of any securities issued and
any other non-cash consideration delivered, and any cash
consideration paid, to the Company or its security holders in
connection with the Change of Control, as reasonably
determined by the Compensation Committee of the Board of
Directors at the time. The Transaction Value per share shall
be appropriately adjusted to account for stock dividends,
stock
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splits, reverse stock splits and like changes to Common Stock.
Compensation shall be payable under this SUBPARAGRAPH 4(E)
within seven business days of the occurrence of the Change of
Control but, in the case of a Change of Control based upon a
vote of the Company's stockholders, in no event earlier than
the occurrence of the underlying event upon which the
stockholders vote.
(ii) In addition to the amounts provided for in
SUBPARAGRAPH 4(E)(i) above, the Company shall pay to Executive
the amount, if any, which when added to the other amounts
payable to Executive under this SUBPARAGRAPH 4(E), will place
Executive in the same after-tax position as if the excise tax
penalty of Section 4999 of the Internal Revenue Code of 1986,
as amended, or any successor statute of similar import, did
not apply to any of the amounts payable under this
SUBPARAGRAPH 4(E). Amounts payable under the immediately
preceding sentence shall be paid not less than 14 business
days prior to the date Executive must pay any portion of such
excise tax penalty, whether by estimated tax payment or
otherwise.
(iii) Notwithstanding anything to the contrary
contained herein, all compensation provided for in this
SUBPARAGRAPH 4(E) shall be payable regardless of whether
Executive's employment with the Company is terminated (for any
reason) in connection with or subsequent to the Change of
Control."
e. Subparagraph 6(d) is hereby amended as
follows:
(1) To delete the word "In" which
appears as the first word of the
first sentence thereof and to substitute in lieu thereof the phrase
"Except as otherwise provided in this Subparagraph 6(d), in".
(2) To insert in clause (iii) thereof
the phrase "subparagraph 4(e) and" immediately preceding the phrase
"SUBPARAGRAPH 6(E)".
f. Subparagraph 6(e)(i)(1) is hereby amended to
include the following phrase at the end thereof: "plus any special
compensation payable under SUBPARAGRAPH 4(E) hereof".
g. Subparagraph 6(e)(i)(6) is hereby amended to
delete such subparagraph in its entirety.
h. Paragraph 11 is hereby amended to include in
the second parenthetical
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thereof the phrase "subparagraph 4(e) or" immediately preceding the
phrase "paragraph 6(e)."
2. Agreement in Force. Except as amended hereby, all of
the provisions of the Existing Employment Agreement shall be and remain in full
force and effect. Upon the effectiveness hereof, each reference in the Existing
Employment Agreement to "this Agreement," "hereunder," "hereof," or words of
like import referring to the Existing Employment Agreement shall mean and be a
reference to the Employment Agreement.
3. Miscellaneous. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York. This
Amendment shall be binding upon, and shall inure to the benefit of, the parties
hereto, any successors to or assigns of the Company and Executive's heirs and
the personal representatives of Executive's estate. The Existing Employment
Agreement, as amended hereby, constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes any prior or
contemporaneous agreements or understanding to the contrary. Titles and caption
of or in this Amendment are inserted only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Amendment or the intent of any of its provisions. The Employment Agreement may
be further modified or amended only in an instrument executed by the party
against whom the modification or amendment is asserted. This Amendment may be
executed by the party against whom the modification or amendment is asserted.
This Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties have executed and delivered
this Amendment as of the Amendment Date as provided above.
CMI INDUSTRIES, INC.
By: /s/
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Title: Director
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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