EXHIBIT 10.02
FIRST AMENDMENT
TO EMPLOYMENT AGREEMENT
DATED JANUARY 26, 1995
Reference is made to the Executive Employment Agreement
dated as of January 26, 1995 (the "Agreement") by and between X.
Xxxxx, Inc. and Xxxxx X. Xxx. Pursuant to paragraph 19 of the
Agreement and in order to amend certain provisions of the
Agreement, the Agreement is further amended as follows:
1. Paragraph 9 of the Agreement is hereby amended by
adding the following two subparagraphs:
"(d) Without Cause. During the Term hereof and
prior to any Change of Control of the Company, the Company may
terminate this Agreement at any time without cause. In such event,
the Company shall pay to the Employee, in accordance with the
Company's regular pay intervals for its senior executives, an
amount equal to the greater of (i) the amount of Base Salary the
Employee would have received through the last day of the Term or
(ii) one (1) year of Base Salary.
(e) Change of Control/Change of Management. (i)
In the event the Employee's employment with the Company is
terminated (A) by the Company or (B) by the Employee for "good
reason" within three (3) years after a Change in Control of the
Company occurring during the Term hereof (regardless of whether
such Employee's termination occurs after the expiration of the
Term), or (ii) in the event the Employee's employment is terminated
(C) by the Company (except if such termination is for "cause" as
defined in subparagraph 9(c) hereof) or (D) by the Employee for
good reason within three (3) years after the employment of any of
Messrs. Xxxxx, Xxxxxxxxx or Xxxxx, respectively, with the Company
has terminated during the Term hereof for any reason including,
without limitation, dismissal, resignation, retirement, death or
termination for any other reason, then, in such event, the Company
shall pay to the Employee an amount, in cash, (the "Severance
Payment") equal to the greater of (i) the amount of Base Salary the
Employee would have received through the last day of the Term or
(ii)
one (1) year of Base Salary. For purposes of this
Agreement "Base Salary" shall mean the Employee's Base Salary as
set forth in subparagraph 3(a) of this Agreement, as such Base
Salary may be increased from time to time. If any of the
termination events set forth in this subparagraph (e) shall occur
during the Term hereof or other applicable time periods, the
provisions of paragraph 7 hereof shall be null and void and have no
further force or effect.
(f) A termination for "good reason" shall be
deemed to have occurred, and the Employee shall be entitled to the
benefits set forth in this paragraph 9, if the Employee voluntarily
terminates his employment after the occurrence of any of the
following events, if either the circumstances set forth in
paragraphs (e)(i) or (e)(ii) has occurred: (i) the assignment to
the Employee of any duties inconsistent with the highest position
(including status, offices, titles and reporting requirements),
authority, duties or responsibilities attained by the Employee
during the period of his employment by the Company; (ii) a
relocation of the Employee outside the metropolitan Boston area; or
(iii)
a decrease in the Employee's compensation (including base
salary, bonus or fringe benefits). For purposes hereof, "Change of
Control of the Company" shall have the meaning set forth in the
Company's 1994 Equity Incentive Plan, as approved by the
Stockholders of the Company on June 7, 1994 (and without regard to
any subsequent amendments thereto).
(g) In the event the Employees's employment is
terminated as described in Paragraph 9(e)(i) above, the Severance
Payment shall be made to the Employee in a single lump sum cash
payment. In the event the Employees's employment is terminated
as described in Paragraph 9(e)(ii) above, the Severance Payment
shall be made to the Employee in accordance with the Company's
regular pay intervals for its senior executives beginning
immediately following the Employee's termination of employment
with the Company.
2. All other terms of the Agreement shall remain
unchanged and continue in full force and effect.
X. XXXXX, INC.
/s/ Xxxxx X. Xxxxx November 6, 1995
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By: Xxxxx X. Xxxxx Date
President and
Chief Executive Officer
/s/ Xxxxx X. Xxx November 6, 1995
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Xxxxx X. Xxx Date
