AMENDMENT NO. 1 EMPLOYMENT AGREEMENT
EXHIBIT
10.8
AMENDMENT
NO. 1
This
Amendment No. 1 to Employment Agreement (this “Amendment”),
effective as of the 2nd
day of
November, 2005, is entered into by and between XXX.xxx,
Inc.,
a
Delaware corporation (the “Company”)
and
Xxxxx
X. Xxxxxx
(the
“Employee”).
WHEREAS,
the
Company and the Employee have entered into that certain Employment Agreement
dated as of the 15th
day of
April, 2004 (the “Agreement;”
capitalized terms used herein and not otherwise defined herein shall have
the
meanings ascribed to them in the Agreement); and
WHEREAS,
the
Employee’s employment under the Agreement is being terminated as of the date
hereof; and
WHEREAS,
in
connection with the termination of the Employee’s employment with the Company,
the Company and the Employee desire to amend the Agreement to delay for a
period
of six months and one day from the date hereof the first payment of any and
all
nonqualified deferred compensation to which the Employee is otherwise entitled
under the Agreement in connection with the termination of the Employee’s
employment with the Company.
NOW,
THEREFORE,
in
consideration of the transactions contemplated hereby and the respective
covenants and agreements of the parties herein contained, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Amendment.
(a) Notwithstanding
any other provision in the Agreement to the contrary, the Company shall not
distribute and/or pay to the Employee and the Employee shall not receive
and/or
take distribution from the Company for a period of six months and one day
following the date of the Employee’s termination of employment with the Company
(the “First
Distribution Date”)
any
amounts that constitute “nonqualified
deferred compensation,”within
the meaning of Section 409A of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder and/or pursuant thereto, to which
the
Employee is otherwise entitled under the Agreement; provided, however, that
on
the Company’s first regular payroll payment date following the First
Distribution Date, the Company shall distribute and deliver to the Employee
all
nonqualified deferred compensation to which the Employee shall have been
otherwise entitled pursuant to the terms of the Agreement for all periods
from
the date of termination of the Employee’s employment with the Company through
and including the First Distribution Date, and, thereafter, the Company shall
distribute and deliver to the Employee any additional nonqualified deferred
compensation to which the Employee is
entitled
under the Agreement in accordance with the schedule and terms set forth in
the
Agreement.
(b) For
purposes of clarification of Section 7(c) of the Agreement, the parties hereto
acknowledge and agree that (i) the Company shall meet its obligations under
Section 7(c) of the Agreement with respect to COBRA by reimbursing the Employee
for the actual, documented, out-of-pocket costs incurred by the Employee
under
COBRA for his payment of the applicable monthly COBRA premium for the
continuation of medical, dental and/or vision coverage under the Company’s
prevailing health plans and COBRA, to the extent the Employee elects to
establish COBRA coverage, within 30 days following receipt by the Company
of
substantiating proof of the Employee’s payment of the applicable monthly COBRA
premium, and (ii) the Employee’s COBRA effective date shall be December 1, 2005,
should the Employee elect to establish COBRA coverage, in recognition of
the
fact that the Company has prepaid for the Employee’s medical coverage under
Company plans through November 30, 2005 (it being understood and agreed to
that
the Company shall be permitted to withhold against amounts due to the Employee
as per normal, ordinary course benefits and payroll practices to cover the
Employee’s portion of the medical benefits coverage for which the Company has
prepaid for and through the period ending November 30, 2005).
2. Effect
of Amendment.
The
Agreement is hereby amended solely as set forth in Section 1 of this Amendment
and all references hereafter to the Agreement shall be deemed references
to the
Agreement as amended by this Amendment.
Other
than as specifically modified, altered or amended pursuant to Section 1 above,
no provision of the Agreement shall be deemed to have been modified, altered
or
amended pursuant to this Amendment. This Amendment shall survive the termination
of the Employee’s employment with the Company, and the termination of the
Agreement, as set forth in Section 14(k) of the Agreement.
3. Miscellaneous.
(a) Governing
Law; Disputes. The
validity, interpretation, construction and performance of this Amendment
shall
be governed by the laws of the State of Connecticut without regard to its
conflicts of law principles. The Company shall not be deemed in violation
or
breach of this Amendment as a result of any action or inaction on the part
of
the Company which was authorized or directed by the Employee.
(b) Notices.
All
notices and other communications provided for hereunder shall be in writing
and
shall be delivered to each party hereto by personal delivery, by priority
overnight delivery sent via a nationally recognized courier (charges for
the
account of sender), by facsimile transmission or by registered or certified
U.S.
mail, return receipt requested, addressed as follows:
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if
to the
Company, to:
XXX.xxx,
Inc.
000
Xxxx
Xxxxx Xxxxx, 0xx
Xxxxx
Xxx
Xxxxx, XX 00000
Attn:
Chief Executive Officer
Facsimile: 000-000-0000
Telephone: 000-000-0000
with
a
copy to the Company’s General Counsel, at the above address, and,
if
to the
Employee, to:
Xxxxx
X.
Xxxxxx
at
his
last residence address on file with the Company
with
a
copy to:
Xxxx
Xxxxxxx LLP
0000
Xxxxxx Xxxxxxxxx
XxXxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile:
000-000-0000
Telephone:
000-000-0000
or
to
such other address as either party may specify by notice to the other party
given as aforesaid. Such notices shall be deemed to be effective five (5)
business days after the same shall have been deposited, postage prepaid,
in the
U.S. mail, upon personal delivery, if the same shall have been delivered
by
hand, one (1) business day after deposit with such overnight courier, if
sent
via priority overnight delivery, or upon receipt of electronic facsimile
confirmation, as the case may be. As used herein, a “business
day”
shall
mean any weekday other than a federal U.S. holiday.
(c) Headings.
All
headings contained in this Amendment are for reference purposes only and
shall
not in any way effect the meaning or interpretation of any provision or
provisions of this Amendment or the Agreement.
(d) Counterparts.
This
Amendment may be executed in counterparts, each of which shall be deemed
to be
an original but all of which together will constitute one and the same
instrument.
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IN
WITNESS WHEREOF, the
parties have executed this Amendment as of the date first set forth
above.
XXX.XXX, INC.: | ||
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By: | /s/ Xxxxxx Xxxxxx | |
Name: Xxxxxx Xxxxxx |
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Title: Chief Financial Officer & Treasurer |
EMPLOYEE: | ||
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By: | /s/ Xxxxx X. Xxxxxx | |
Name:
Xxxxx X. Xxxxxx
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