Exhibit 12
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment"), is made and
entered into as of the 14th day of May, 1999, by and between First Commonwealth,
Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxxx, an
individual resident of the State of Illinois ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive are parties to an Amended and
Restated Employment Agreement dated February 12th, 1999 (the "Employment
Agreement"); and
WHEREAS, the Company and Executive desire to amend such Employment
Agreement on the terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained in this Amendment, the parties agree as follows:
1. There is hereby added a Section 3.3 to the Employment Agreement
to read as follows:
"3.3 Reduction of Payments by the Company. Anything in this
Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company or its
affiliated companies to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any adjustment
required under this Section 3.3) (in the aggregate, the "Total Payments")
would be subject to the excise tax imposed by Section 4999 of the Code
(the "Excise Tax"), and if it is determined that (A) the amount remaining,
after the Total Payments are reduced by an amount equal to all applicable
federal and state taxes (computed at the highest applicable marginal
rate), including the Excise Tax, is less than (B) the amount remaining,
after taking into account all applicable federal and state taxes (computed
at the highest applicable marginal rate), after payment or distribution to
or for the benefit of the Executive of the maximum amount that may be paid
or distributed to or for the benefit of the Executive without resulting in
the imposition of the Excise Tax, then the payments due hereunder shall be
reduced so that the Total Payments are One Dollar ($1) less than such
maximum amount. All determinations required to be made pursuant to this
Section 3.3 shall be made by a nationally recognized public accounting
firm selected with the mutual agreement of the Company and Executive."
2. Except as specifically provided in this Amendment to the
Agreement, this Amendment shall not by implication or otherwise alter, modify,
amend or in any such way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Agreement to be duly executed, all as of the date and year
first above written.
FIRST COMMONWEALTH, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: CEO
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
