Exhibit 10.8
Amendment Dated as of April 26, 2000 to
Escrow Agreement Dated February 6, 1990,
As Amended, Between Xxxxxx'x Entertainment, Inc.
And Bank of America, N.A.
The next to last sentence of Section 2.01(e) of the Escrow
Agreement is amended to read as follows:
"Notwithstanding the foregoing, any actuary or certified
public accountant or MCG Northwest, LLC or a successor thereto that
provides an opinion or advice in connection with the funding
requirements of this Escrow Agreement shall assume, for purposes of
calculating EDCP benefits, that all EDCP Participants (other than
those who have already terminated and are receiving the Termination
Rate) will be entitled to their Retirement Account balances as of
the date of the calculation. Notwithstanding anything in this Escrow
Agreement to the contrary, for the purpose of funding EDCP accounts,
this Escrow Agreement shall be deemed sufficiently funded at any
point in time if the Escrow Fund has sufficient assets at that time
to pay the total amount of all EDCP account balances (the Retirement
Rate balances) plus the Termination Rate balances of terminated
employees who are receiving the Termination Rate; provided, however,
that immediately prior to a Change in Control (as this term is
defined in the Severance Agreements of Corporate Senior Vice
Presidents) of Xxxxxx'x Entertainment, Inc., the Company shall
calculate and increase the funding of the Escrow Fund, if necessary,
so that the present value of all EDCP accounts will, prior to the
Change in Control, be fully funded based on the following required
assumptions:
(1) All EDCP Participants will receive the applicable
Retirement Rate for their EDCP accounts (except for those who
have terminated employment and are receiving the Termination
Rate in which case it will be assumed that they continue to
receive this rate).
(2) Distribution of Participants' accounts (in addition to
those already in distribution) will commence three years after
the Change in Control or age 55 if earlier based on the
assumption Participants will terminate employment at that
time.
(3) Distributions will occur according to the payment
schedules elected by Participants in their deferral
participation agreements.
(4) The discount rate used at the time this funding is
calculated to determine any increase in funding will be the
Ten Year Treasury Note Rate on the business day before the
funding amount is calculated minus 1%. The Ten Year Treasury
Note Rate will be the rate shown in the Credit Markets Column
of The Wall Street Journal under "Treasury 10+ yr" or if no
longer so published, in another publication or report that
provides this rate.
The Company may rely on the opinion of any actuary, a
certified public accountant, an investment adviser, or MCG
Northwest, LLC or a successor thereto in making this calculation. If
there is any disagreement concerning these calculations including
the Ten Year Treasury Note Rate, MCG Northwest, LLC or a successor
thereto or another consultant as identified by the Company's Chief
Executive Officer will make the final decision. Nothing herein will
prevent the Company from providing additional funding if the Company
decides additional funding at any time is appropriate to fully fund
the Escrow and nothing herein will negate the requirement for
funding DCP accounts of EDCP Participants at their account balances
or funding other obligations required to be funded pursuant to this
Escrow Agreement."
This amendment is subject to the consent of Participants under
the Escrow Agreement having at least 50% of the total amount of all
accounts which are accounted for under the Escrow Agreement with
respect to benefits allocable to them.
AGREED:
Xxxxxx'x Entertainment, Inc.
By: /s/ XXXXXX XX
---------------
Title: VP, Compensation and Benefits
Executed and Agreed to By
Xxxxx Fargo Bank Minnesota, N.A.,
Successor to
Bank of America, N.A. as
Escrow Agent:
By: /s/ XXXXXX XXXXX
-----------------
Title: Vice President
