Exhibit 99.3
AMENDMENT AND WAIVER TO JULY 7, 1999 EMPLOYMENT AGREEMENT
BETWEEN XXXXXXXXXX.XXX, INC. AND XXXXXX X. XXXXX (12/15/03)
Xxxxxxxxxx.xxx, Inc. ("Company"), and Xxxxxx X. Xxxxx ("Executive"), agrees
that this Amendment and Waiver (this "Amendment") sets forth the complete
agreement and understanding regarding the changes to Executive's Employment
Agreement detailed herein.
Whereas, the Company and Executive entered into an Employment Agreement
(the "Agreement") as of July 7, 1999;
Whereas pursuant to Section 1 of the Agreement, a "Change in Control" is
deemed to occur in the event any person (as defined in paragraphs 13(d) and
14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rule
13(d)-3 of the Exchange Act) of the securities of the Company representing 30%
or more of the combined voting power of the Company's then outstanding
securities ordinarily having the right to vote for the election of directors of
the Company;
Whereas, pursuant to a contemplated transaction (the "Zions Transaction")
between the Company and Zions Bancorporation ("Zions"), Zions will purchase a
certain number of securities of the Company such that Zions shall become the
"beneficial owner" (as defined in Rule 13(d)-3 of the Exchange Act) of the
securities of the Company representing 30% or more of the combined voting power
of the Company's then outstanding securities ordinarily having the right to vote
for the election of directors of the Company;
Whereas, the Zions Transaction will result in a "Change in Control" as
defined in Section 1 of the Agreement;
Whereas, pursuant to Section 6(a) of the Agreement, Executive can terminate
the Agreement for "Good Reason" and receive a payment equal to a multiple of
twice Executive's Base Salary (as defined in the Agreement) in effect as the
date of termination;
Whereas Section 1 of the Agreement defines "Good Reason" to include a
"Change in Control" of the Company;
Whereas, under the original terms of the Agreement, the Zions Transaction
would otherwise permit Executive to terminate the Agreement for Good Reason and
receive a payment equal to a multiple of twice Executive's Base Salary in effect
as of the date of such termination;
Whereas, the Company cannot enter into the Zions Transaction without
amending Executive's employment agreement;
Therefore, for purposes of consummating the Zions Transaction and other
good and valuable consideration, the receipt and sufficency of which is
hereby acknowledged, Executive agrees to waive his right under Section 6(a)
of the Agreement as follows:
1. WAIVER. In accordance with Section 15 of the Agreement, Executive
agrees to waive his right under Section 6(a) of the Agreement to unilaterally
terminate the Agreement for "Good Reason" subject to a "Change in Control" for
the Zions Transaction only. The Executive acknowledges and agrees that any
additional purchases by Zions and/or its affiliates subsequent to the
consummation of the Zions Transaction shall not constitute a Change of Control
pursuant to clause (i) of the definition of Change of Control unless as a result
of any such additional purchase, Zions would own, in the aggregate, greater than
50% of the combined voting power of the Company's then outstanding securities
ordinarily having the right to vote for the election of directors of the
Company.
2. VIOLATION OF AGREEMENT. If Executive or Company institutes any legal
or equitable action claiming that the other party has breached this Amendment,
the prevailing party in that legal or equitable action shall be entitled to
recover from the other party all reasonable attorneys' fees and costs incurred
by the prevailing party in connection with such action.
3. SEVERABILITY. The provisions of this Amendment shall be severable and
the invalidity of any provision shall not affect the validity of the other
provisions; provided, however, that upon a finding by a court of competent
jurisdiction that the waiver of Paragraph 1 above is illegal, void or
unenforceable, Executive agrees, at Company's option, to execute promptly an
Amendment and Waiver that is legal and enforceable to the same effect.
4. GOVERNING LAW AND JURISDICTION. This Amendment shall be governed by
and construed in accordance with laws and judicial decisions of the State of
Illinois, without regard to its principles of conflicts of laws.
1
5. KNOWING AND VOLUNTARY WAIVER. Executive acknowledges that:
a. Executive has carefully read this Amendment and fully understands its
meaning;
b. Executive was not coerced into signing this Amendment;
c. Executive agrees to all the terms of this Amendment and is entering
into it knowingly, voluntarily, and with full knowledge of its
significance; and
d. [The only consideration Executive is receiving for signing this
Amendment is described herein, and no other promises or
representations of any kind have been made by any person or entity to
cause Executive to sign this Amendment.][What consideration is
stated?]
6. ENTIRE AGREEMENT. This Amendment contains the entire agreement and
understanding between Executive and Company concerning the matters
described herein. All terms of the Agreement not explicitly amended herein
remain as stated in the original Agreement. The terms of this Amendment
cannot be changed except in a subsequent document signed by both parties.
EXECUTIVE COMPANY
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------- ---------------------------------
Executive Signature
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx, XX XX
Vice President, General Counsel
Dated: 3/1/04 Dated: 3/1/04
-------------------------- ----------------------------------
2
