EXHIBIT 10.19
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EXECUTION COPY
AMENDMENT TO
STAY PAY AGREEMENT
FOR
XXXXXXX X. XXXX
This Amendment to the Stay Pay Agreement for Xxxxxxx X. Xxxx is entered
into effective as of September 27, 2000 by and between Xxxxxxx X. Xxxx (the
"Employee") and Xxxxxxx, Inc. a Delaware corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Company and the Executive have entered into that certain
Stay Pay Agreement, effective as of January 1, 2000 (the "Original Agreement"),
providing for the Employee's employment with the Company; and
WHEREAS, the Company and the Employee desire to further amend the
Original Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 6 is hereby amended to read in its entirety as
follows:
TREATMENT OF CONSIDERATION HEREUNDER PURSUANT TO INTERNAL
REVENUE CODE SECTIONS 280G AND 4999.
(a) Subject to Subparagraph 6(d), below, if any portion of the
consideration hereunder or any other payment under this
Agreement, or under any other agreement with or plan of, or
with the Employer (in the aggregate, "Total Payments"), would
constitute an "excess parachute payment," then the Total
Payments to be made to the Employee shall be reduced such that
the value of the aggregate Total Payments that the Employee is
entitled to receive shall be One Dollar ($1.00) less than the
maximum amount which the Employee may receive without becoming
subject to the tax imposed by Section 4999 of the Code (or any
successor provision) or which the Company may pay without loss
deduction under Section 280G(a) of the Code (or any successor
provision). For purposes of this Agreement, the terms "excess
parachute payment" and "parachute payments" shall have the
meanings assigned to them in Section 280G of the Code (or any
successor provision), and such "parachute payments" shall be
valued as provided therein. Present value for purposes of this
Agreement shall be calculated in accordance with Section
1274(b)(2) of
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the Code (or any successor provision). Upon the occurrence of
a Change of Control Transaction or notice by the Company to
the Employee of its belief that there is a payment or benefit
due the Employee which will result in an excess parachute
payment as defined in Section 280G of the Code (or any
successor provision), the Employee and the Company, at the
Company's expense, shall obtain the opinion (which need not be
unqualified) or nationally recognized tax counsel ("National
Tax Counsel") selected by the Company's independent auditors
and reasonably acceptable to the Employee (which may be
regular outside counsel to the Company), which opinion sets
forth (A) the amount of the Base Period Income, (B) the amount
and present value of Total Payments and (C) the amount and
present value of any excess parachute payments determined
without regard to the limitations of this Subparagraph 6(a).
As used in this Subparagraph 6(a), the term "Base Period
Income" means an amount equal to the Employee's "annualized
includable compensation for the base period" as defined in
Section 280G(d)(1) of the Code. For purposes of such opinion,
the value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance wit the principles of Sections
280G(d)(3) and (4) of the Code (or any successor provisions),
which determination shall be evidenced in a certificate of
such auditors addressed to the Company and the Employee. The
opinion of National Tax Counsel shall be addressed to the
Company and the Employee and shall be binding upon the Company
and the Employee. If such National Tax Counsel opinion
determines that there would be an excess parachute payment,
the Termination Payment hereunder or any other payment or
benefit determined by such counsel to be includible in Total
Payments shall be reduced or eliminated as specified by the
Employee in writing delivered to the Company within thirty
days of his receipt of such opinion or, if the Employee fails
to so notify the Company, then as the Company shall reasonably
determine, so that under the bases of calculations set forth
in such opinion there will be no excess parachute payment. If
such National Tax Counsel so requests in connection with the
opinion required by this Section, the Employee and the Company
shall obtain, at the Company's expense, and the National Tax
Counsel may rely on, the advice of a firm of recognized
executive compensation consultants as to the reasonableness of
any item of compensation to be received by the Executive
solely with respect to its status under Section 280G of the
Code and the regulations thereunder.
(b) If, notwithstanding the provisions of Subparagraph 6(a),
it is ultimately determined by a court or pursuant to a final
determination by the Internal Revenue Service that any portion
of Total Payments is subject to the tax (the "Excise Tax")
imposed by Section 4999 of the Code (or any successor
provision), the Executive agrees that a further "cutback"
pursuant to Section 6(a) hereof shall be made such that no
portion of the Total Payments is subject to the Excise Tax.
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(c) The Company agrees to bear all costs associated with, and
to indemnify and hold harmless, the National Tax Counsel of
and from any and all claims, damages, and expenses resulting
from or relating to its determinations pursuant to this
Section, except for claims, damages or expenses resulting from
the gross negligence or willful misconduct of such firm.
All remaining provisions of the Original Agreement shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
EMPLOYEE XXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxx Xxxxxx X. Xxxxx
0
XXXXX XX XXXXXXX:
XXXXXX XX XXXXX
Xx the 27th day of September in the year 2000 before me, the
undersigned, a Notary Public in and for said state, personally appeared Xxxxxxx
X. Xxxx , personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual or the person upon behalf of
which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in
/s/ Xxxxxxx X. Xxxxxxx
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Signature of Notary Public
[SEAL]
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