Exhibit 10.2
Norton XxXxxxxxxx of Xxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 9, 2001
Xx. Xxxxxx X. Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Dear Mandi:
Reference is made to the Employment Agreement (the "Employment
Agreement") dated as of November 5, 1993, as amended, between Norton XxXxxxxxxx
of Xxxxxx, Inc. (the "Company") and you. Capitalized terms used herein shall
have the meanings ascribed to such terms in the Employment Agreement.
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and you agree that
Section 3.2 of the Employment Agreement is hereby amended and restated in its
entirety to read as follows:
Section 3.2 Bonus and Other Payments. (a) For each of
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the fiscal years of the Company during the Term, in addition to the
salary provided for in Section 3.1, the Employee shall be eligible to
receive a bonus, if any, for such fiscal year as shall be determined by
the Compensation Committee of the Board of Directors of the Parent. It
is understood and agreed that for the Company's fiscal year ending
November 3, 2001 ("Fiscal 2001"), the Employee shall participate in the
Parent's Incentive Bonus Plan for Senior Officers adopted by the
Compensation Committee of the Parent at a meeting duly called and held
on January 16, 2001, a copy of which is attached as Exhibit B to the
minutes of that meeting (the "Plan").
(b) (i) In the event that there shall occur a Change
in Control (as defined below) during Fiscal 2001, the Company and the
Employee agree that (1) on or before the closing date of such Change in
Control (the "Change in Control Date"), and in consideration for the
Employee's agreement contained in the following clause (2), the Company
shall pay $400,000 to the Employee (the "Payment") and (2) the Employee
agrees that, upon receipt of the Payment, the Employee shall not be
eligible to receive any bonus or other payment pursuant to the Plan.
(ii) For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred if:
(a) a "person" (meaning an individual, a partnership, an entity,
or other group or association as defined in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934), acquires fifty percent (50%)
or more of the combined voting power of the outstanding securities of
the Parent having a right to vote in elections of directors; or
(b) Continuing Directors shall for any reason cease to constitute
a majority of the Board of Directors of the Parent; or
(c) the business of the Parent is disposed of in a disposition of
all or substantially all of its assets (including stock of
subsidiary(s)).
For purposes of this Agreement, the term "Continuing Director" shall
mean a member of the Board of Directors of the Parent who either was a
member of such Board of Directors on April 5, 2001 or who subsequently
became a member of such Board of Directors and whose election, or
nomination for election, was approved by a vote of at least two-thirds
of the Continuing Directors then in office.
(c) In the event that (i) a Change in Control occurs
during Fiscal 2001 and (ii) either (1) the Employee shall remain in the
employment of the Parent, the Company or any affiliate of either such
entity on the first anniversary date (the "First Anniversary Date") of
the Change in Control Date or (2) the Employee's employment hereunder
has been terminated pursuant to Section 6.1, 6.2 or 6.4 of this
Agreement after the Change in Control Date and prior to the First
Anniversary Date, the Company shall pay $300,000 to the Employee on the
earlier to occur of the First Anniversary Date or the date of such
termination. The provisions of this clause (c) shall be in addition to,
and not in lieu of, any other provision of this Agreement.
Except as amended hereby, the Employment Agreement shall
remain in full force and effect and it is hereby ratified and confirmed by the
Company and you.
Please sign a copy of this Amendment in the space provided
below in order to evidence your agreement with the foregoing.
Very truly yours,
NORTON XXXXXXXXXX OF XXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Chairman of the Board, Chief Executive
Officer and President
Agreed and accepted as of
the date first above written:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
