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EXHIBIT 10.8
AMENDMENT TO CHANGE IN CONTROL AGREEMENT ("Agreement")
This Amendment (the "Amendment") and the attached Schedule A are entered into as
of the 30th day of April, 2001 by Xxx Xxxx Corporation, a Delaware corporation
(the "Company"), and Xxxxxxxxx X. Xxxxx ("Employee"). To the extent there is any
actual or apparent conflict between this Amendment and the terms of the
Agreement, this Amendment shall prevail.
Whereas, Company and the Employee desire to amend the Agreement in certain
respects;
Now therefore, the Agreement is hereby amended to add the following provisions
as follows:
1. MERGER WITH PULTE CORPORATION
Notwithstanding anything in this Agreement to the contrary, upon the
effective date of the merger of Company and Pulte Acquisition Corp. pursuant to
the merger agreement dated April 30, 2001 (the "Merger Effective Date") between
Company, Pulte Corporation and Pulte Acquisition Corporation, Employee will, at
his election, either continue as an at will employee of Company or become a
consultant to Company for the period (the "Post-Merger Period") beginning on the
Merger Effective Date and continuing until the first to occur of (1) the first
anniversary of the Merger Effective Date and (2) termination of the Employee's
employment or consulting arrangement because of Employee's death or disability,
or termination by Company (if Company terminates, he will automatically become a
consultant for the remainder of the one-year period following the Merger
Effective Date). If Employee elects to continue as an Employee, he may, at any
time during the Post-Merger Period, elect to cease being an employee and then
must continue as a consultant, on an as-needed basis by Company (making himself
available as reasonably requested by the Company) until the end of the
Post-Merger Period. Once Employee elects to be a consultant, he may not return
to employee status without the consent of Company.
2. RESTRICTIVE COVENANT
In consideration of Company's agreements contained herein and the
payments to be made by it to Employee pursuant hereto, Employee agrees that,
during the duration of this restrictive covenant, he will not:
(1) Without the prior written consent of the Board of
Directors of Company, engage in a Competing Business
within 100 miles of the outer boundaries of any
Standard Xxxxxxxxxxxx
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Xxxxxxxxxxx Xxxx (or such lesser geographical area as
may be set by a court of competent jurisdiction or an
arbitrator) in which any of the businesses of Company
are being conducted on the date of termination of
this Agreement or within 100 miles of the outer
boundaries of any Standard Metropolitan Statistical
Area (or such lesser geographical area as may be set
by a court of competent jurisdiction or an
arbitrator) in which the Company's strategic plan or
any replacement plan (the "Strategic Plan"), as in
effect on the date of the competitive activity by
Employee, discusses the possibility of Company
conducting business within two years following the
date of termination of this Agreement; or
(2) During the Post-Merger Period, directly or
indirectly, for himself, or on behalf of, or in
conjunction with, any other person or entity, seek to
hire and/or hire any individual who is employed by
Company, and/or Pulte Acquisition Corp., unless
previously terminated by the Company and/or Pulte
Acquisition Corp. or any Subsidiary immediately prior
to such hiring or solicitation or during the prior
one-year period.
3. REMEDIES; REASONABLENESS
Employee acknowledges and agrees that a breach by Employee of the
provisions of this Section will constitute such damage as will be irreparable
and the exact amount of which will be impossible to ascertain and, for that
reason, agrees that Company will be entitled to an injunction restraining and
enjoining Employee from violating the provisions of this Section. The right to
an injunction shall be in addition to and not in lieu of any other remedy
available to Company for such breach or threatened breach, including the
recovery of damages from Employee.
Employee expressly acknowledges and agrees that (i) this Restrictive
Covenant is reasonable as to time and geographical area and does not place any
unreasonable burden upon him; (ii) the general public will not be harmed as a
result of enforcement of this restrictive covenant; and (iii) Employee
understands and hereby agrees to each and every term and condition of this
Restrictive Covenant.
4. COMPETING BUSINESS
For purposes of this Agreement, Employee shall be deemed to be engaged
in a "Competing Business" if, in any capacity, including but not limited to
proprietor, partner, officer, director, or employee, he engages or participates,
directly or indirectly, in the operation, ownership, or management of any
proprietorship, partnership, corporation, or other business entity which
competes, in whole or in part, with the then actual business of Company or any
business
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contemplated by Company's Strategic Plan as in effect on the date of the
competitive activity by Employee. Indirect participation in the operation or
ownership of any such entity shall include any investment by Employee in any
such entity, by way of loan, guaranty, or stock ownership (other than ownership
of 1% or less of any class of equity or other securities of a company which is
listed and regularly traded on any national securities exchange or which is
regularly traded over-the-counter). Employee shall not be deemed to be engaged
in a "Competing Business" if, in any capacity enumerated above, he engages or
participates, directly or indirectly, in the operation, ownership, or management
of any proprietorship, partnership, corporation, or other business entity where
Employee or the business entity in which he may be involved, either directly or
indirectly, and together with any related individuals or entities, builds fewer
than 25 homes per calendar year (with the number of homes to be determined by
the number of permits pulled for such homes). At the written request of Employee
from time to time, Company shall furnish Employee with a written description of
the business or businesses in which Company is then actively engaged.
For purposes of this Amendment, a Competing Business is defined as a
business whose primary business is conventional homebuilding and/or
age-restricted homebuilding. The Restrictive Covenant will continue until the
end of the Post-Merger Period.
5. CHANGE IN CONTROL
Notwithstanding the foregoing, if the Change-in-Control results from the
merger of Company and Pulte Acquisition Corp. pursuant to the merger agreement
described in Section 1 above, the restrictive covenant will continue until the
end of the Post-Merger Period.
6. BREACH AND OPPORTUNITY TO CURE
No damages for any breach of the foregoing provisions, including Schedule
A, shall be available in the absence of providing to Xx. Xxxxx 30 days' written
notice and opportunity to cure.
Xxx Xxxx Corporation
By: /s/ Xxxx X. Xxxxxxx
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Its: EVP/CFO
/s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
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Schedule A
Xxxxxxxxx X. Xxxxx shall receive a fee of $600,000 on the first anniversary of
the Merger Effective Date.
Consulting / Advisory Duties: Xxxxxxxxx X. Xxxxx will make himself reasonably
available to act in an advisory capacity and to provide professional guidance,
input, counsel and advice as to matters relevant to the Company's existing
business locations and affairs, and such other matters that the Company shall
request.
