June 30, 2008
Exhibit 10.58
June 30, 2008
Mr. Xxxxxxx Xxxxxxxx
000 Xxx Xx.
Xxxxxxxx, XX 00000
000 Xxx Xx.
Xxxxxxxx, XX 00000
Dear Xxxx:
This letter agreement supplements and amends the letter agreement between you and Fair Xxxxx
Corporation (the “Company”) dated October 12, 2007 (the “Prior Letter Agreement”) regarding the
terms and conditions of your employment as Chief Operating Officer of the Company, as follows:
Interpretation: This letter agreement is intended to satisfy, or otherwise be exempt from, the
requirements of Sections 409A(a)(2), (3), and (4) of the Internal Revenue Code of 1986, as
amended (the “Code”), including current and future guidance and regulations interpreting such
provisions, and it should be interpreted accordingly.
Change
in Control: In order to accomplish our mutual intention to comply with
Section 409A of the Code regarding deferred compensation, you and the Company
will enter into an Amended and Restated Management Agreement, as may be amended
from time to time (“Amended Management Agreement”), the terms of which are
incorporated herein by reference (except that terms defined in the Amended
Management Agreement apply only to the use of such terms in the Amended
Management Agreement, and terms defined in this letter agreement apply only to
the use of such terms in this letter agreement), which shall supersede and
replace the Management Agreement between you and the Company dated April 17,
2007 (the “Prior Management Agreement”).
Severance: The first paragraph of the section under the heading,
“Severance,” in the Prior Letter Agreement is hereby
amended in relevant part to provide as follows:
Upon a Qualifying Termination the Company
will, for a period of twelve (12) months following
the effective date of termination of your employment,
allow you to continue to participate in any insured
group health and group life insurance plan or program
of the Company (but not any self-insured medical
expense reimbursement plan within the meaning of
Section 105(h) of the Internal Revenue Code) at the
Company’s expense, to the extent you were a
participant in such plans as of your last day of
employment; however, if your participation in any
such plan is barred, the Company will arrange to
provide you with substantially similar insured
coverage at its expense. Benefits
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provided by the
Company may be reduced if you become eligible for
comparable benefits from another employer or third
party.
The definition of “Good Reason” in the Prior Letter Agreement is hereby amended for
purposes of this letter agreement to provide as follows:
“Good Reason” means any one or more of the following conditions occur
without your written consent: (i) a material reduction in your authority,
duties, or responsibilities as Chief Operating Officer, including a
reduction in your budget authority or a requirement that you report to a
corporate officer or employee instead of reporting directly to the Board of
Directors of the Company; or (ii) material breach by the Company of any
terms or conditions of this letter agreement, which breach has not been
caused by you and which has not been cured by the Company within fifteen
(15) days after written notice thereof to the Company from you.
The last paragraph of the section under the heading, “Severance,” in the Prior
Letter Agreement is hereby amended to provide as follows:
You shall not be eligible for any severance pay under this letter agreement
if the termination of your employment occurs within 90 days before, or at
any time upon or after, the occurrence of a First Event and prior to the end
of the Transition Period, as “First Event” and “Transition Period” are
defined in the Amended Management Agreement, except that you will be
eligible for severance pay under this letter agreement if the termination of
your employment is otherwise a Qualifying Termination and occurs within 90
days before the First Event, and you fail to satisfy the condition set forth
in Section 2(f) of the Amended Management Agreement.
* * *
[signature page follows]
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Except as specifically set forth in this letter, the Prior Letter Agreement remains in full force
and effect as amended by this letter agreement. Please indicate your agreement to this letter
agreement by signing this letter below, and returning a copy to me.
Sincerely,
Xxxx X. Xxxxxx
Chief Executive Officer
Chief Executive Officer
I accept and agree to the amended terms and conditions of employment with Fair Xxxxx Corporation as
set forth above.
/s/ Xxxxxxx X. Xxxxxxxx
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