EXHIBIT 10.1
AMENDMENT No. 1
EMPLOYMENT AGREEMENT
BETWEEN xXXxX*s CORP.
AND
XXXXXX XXXXX
DATED AS OF OCTOBER 14, 2002
xXXxX*s Corp. (the "Company"), a Delaware corporation, and Xxxxxx Xxxxx (the
"Executive") agree as follows:
1. The Employment Agreement between the Company and the Executive dated as
of May 7, 2001 (the "Agreement") is hereby amended as follows:
a. Section 1 (a) (Employment and Duties) is hereby deleted in its
entirety and replaced with the following language. "The
Company shall employ the Executive, and the Executive shall
serve the Company, as an advisor on an as needed basis as
mutually agreed upon by the parties for the Employment Period
(as defined below). The Executive shall report to, and be
subject to the authority of, Xxxxxxx X. Xxxx. The Executive
(i) shall perform such duties faithfully and diligently
consistent with sound business practices and (ii) shall not
perform duties of any nature or kind whatsoever (other than
serving on the board of directors and other incidental
advisory positions) for any other person, firm, corporation,
business or entity during the Employment Period (as defined
below). The Executive acknowledges that the organization
structure and reporting relationships will be at the direction
of the Company, provided, however, Executive shall for the
Employment Period report directly to Xxxxxxx X. Xxxx.
b. Section 1 (b) (Employment and Duties) is hereby deleted in it
entirety and replaced with the following language. "Unless
otherwise agreed to in writing between the Company and the
Executive, Executive shall continue to serve as a director of
the Board until such time as Executive is no longer employed
by the Company, at which time the Executive shall tender and
the Company shall accept her resignation as a director of the
Board."
c. Section 2 (d) (Performance Bonus) is hereby amended by
deleting subsection 2(d)(iii) in its entirety.
d. Section 3 (a) (Term) is hereby amended by changing the
language in the second line, "and continue until the third
anniversary thereof;" to "and continue until September 1,
2003," and the following language is added to the end of
subsection 3(a)(iv), "provided, however, in no event prior to
May 15, 2003."
e. Section 3 (b) (Term) is hereby amended by deleting subsections
3(b)(v) and 3(b)(vi) in their entirety.
f. Section 3 (c) (Term) is hereby amended by deleting the
following language contained beginning on the sixth line of
subsection 3(c)(ii), "or as a group or individually Xxxxxxx X.
Xxxx, his spouse and their issue any trusts for the benefit of
any of them and parties to the
Family Stockholders Agreement, dated November 30, 1996 among
xXXxX*s Inc., Xxxxxxx X. Xxxx and the Parties listed on
Exhibit A thereto"
g. Section 4(a) (Separation Pay) is hereby amended by deleting
the language in subsection 4(a)(ii) in its entirety.
h. Section 4(b) (Separation Pay) is deleted in its entirety and
replaced with the following language. "In the event of
termination of the Employment Period by the Company for Cause,
the Company shall promptly pay to Executive all sums in
respect to Base Salary and benefits accrued and unpaid to the
date of termination, and no other sums of any kind shall be
due and owing to the Executive.
i. Section 4(c) (Separation Pay) is deleted in its entirety and
replaced with the following language. "If the Employment
Period is terminated by the Company without Cause or by the
Executive for Good Reason in accordance with Section 3(c), the
Company shall pay to the Executive, in a lump sum, within
fifteen (15) days of such termination (i) an amount equal to
the amount Executive would have earned if she continued to
receive the Base Salary until September 1, 2003 and (ii) all
sums accrued and unpaid to the date of termination. The
Company shall also pay to Executive, on or before March 31, of
the following fiscal year, a share of the Performance
Target-related bonus that the Executive would otherwise have
received, such share to be in proportion to the period of the
fiscal year covered by the Employment Period. The provisions
of this Section 4(c) shall constitute Executive's sole and
exclusive remedy in connection with termination of the
Employment Period by the Company without Cause or by the
Executive for Good Reason.
j. Section 4(d) (Separation Pay) shall be added as follows. "In
the event of Executive's resignation, other than for Good
Reason, Executive shall (i) continue to receive her Base
Salary until September 1, 2003, and no other sums of any kind
shall be due and owing to the Executive.
k. Section 5(c) (Expenses; Fringe Benefits) is deleted in its
entirety and replaced with the following language. "The
Company shall pay for, or reimburse, the Executive's round
trip economy-class airfare for commuting between New York and
Florida when Executive is requested by the Company to be in
the New York offices."
l. Section 5(g) (Expenses; Fringe Benefits) is deleted in its
entirety and replaced with the following language. "The
Company shall reimburse the Executive for reasonable legal
fees, not to exceed Five-Thousand ($5,000) dollars, incurred
in connection with the negotiation of this Amendment No.1.
m. Sections (6)(a), (6)(b), 6(c) and 6(f) (Non-Competition) are
hereby deleted in their entirety.
n. Section 10(c) (Additional Stock Options) is hereby deleted in
its entirety.
o. Section 13 (Miscellaneous) is hereby amended by adding the
following at the end of the Section,
"(k) The Executive and the Company (including its officers and
directors) agree that they will not engage in any conduct that is
injurious to the reputation and interests of the other, directly or
indirectly, including but not limited to publicly disparaging (or
inducing or
encouraging others to publicly disparage) the other or any directors,
officers, employees, designees or agents of the other (as the case may
be).
(l) The Company and Executive shall use reasonable efforts to
mutually agree upon the content of any press releases of the Company
that relates directly to the Executive."
2. Except as expressly provided for herein, all other provisions of the
Agreement shall continue in full force and effect without modification.
XXXXXX XXXXX xXXxX*s CORP.
/s/Xxxxxx Xxxxx By: /s/Xxxxxxx X. Xxxx
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Its Authorized Signatory
