EXHIBIT 10.1
AMENDMENT TO EMPLOYMENT AGREEMENT
(XXXXXXX X. XXXXXXX)
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT (the "Amendment") is dated
as of December 16, 2005 by and between XXXXX XXXXXX, INC. (the "Company") and
XXXXXXX X. XXXXXXX ("Xxxxxxx").
WHEREAS, the Company and Xxxxxxx are parties to that certain Employment
Agreement dated as of January 1, 2003 (the "Agreement"); and
WHEREAS, pursuant to and in accordance with Section 10(c) of the
Agreement, the parties now desire to amend the Agreement as provided below;
NOW, THEREFORE, in consideration of the foregoing, and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as set forth below. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Agreement.
1. Section 1.2 Employment Period. The first two sentences of Section 1.2
of the Agreement are hereby amended and restated in their entirety to read as
follows:
"Xxxxxxx'x employment shall be for the period (the "Employment Period")
commencing on January 1, 2003, and ending on the earlier of (i)
December 31, 2008, as such date may be extended as provided below, or
(ii) the date on which Xxxxxxx'x employment is terminated earlier
pursuant to Section 4 hereof. The Employment Period may be extended by
the Company from time to time for successive three-year periods by
giving Xxxxxxx notice (an "Extension Notice") thereof at least six
months but not more than twelve months prior to the date that the then
applicable Employment Period is to expire."
2. Section 2.1 Base Salary. Effective January 1, 2006, Xxxxxxx'x Base
Salary shall be increased to the rate of $1,000,000 per annum.
3. Section 3 Benefits.
(a) The second sentence of Section 3.1 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"Unless the Employment Period shall have been terminated for Cause (as
defined in Section 4.3 hereof) or Xxxxxxx terminates his employment
pursuant to Section 4.1(c)(ii), during the period commencing
immediately after the Employment Period (subject to deferral for six
months if and as required by Section 409A of the Code) and continuing
(x) as to Xxxxxxx, for the life of Xxxxxxx, (y) as to Xxxxxxx'x spouse,
for the life of his spouse and (z) as to his children, until the
earlier to occur of (A) such child attaining the age of 28 or (B) such
child completes his graduate studies (collectively, his "Family") the
Company shall continue the participation of Xxxxxxx and his Family in
all health and medical benefit plans, policies and programs in effect
from time to time with respect to the senior executive officers of the
Company and their families generally (at the same levels and at the
same cost, if any, as provided to the senior executive officers of the
Company generally)."
(b) The first sentence of Section 3.3 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"During the Employment Period and, if Xxxxxxx'x employment hereunder
has been terminated by him pursuant to Section 4.1(c)(iii) hereof, for
a period of three years thereafter (subject to deferral for six months
if and as required by Section 409A of the Code), or if Xxxxxxx'x
employment hereunder has not been terminated by the Company for Cause
(as defined in Section 4.3 hereof) or by Xxxxxxx pursuant to Section
4.1(c)(ii) or (iii) hereof, for a period of two years thereafter
(subject to deferral for six months if
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and as required by Section 409A of the Code), the Company shall provide
for Xxxxxxx'x use an automobile of similar make and model to the
automobile he currently drives or its substantial equivalent, and all
ancillary equipment similar to that as he currently uses with his
automobile, and shall pay the costs of fuel, maintenance, repairs and
insurance."
4. Section 5.1 Death. The first sentence of Section 5.1 of the Agreement
(defining the elements of "Accrued Obligations") is hereby amended to delete
clause (b) in its entirety, and to re-letter the following clauses (c) through
(f), as clauses (b) through (e). The third sentence of Section 5.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"Unless otherwise required by any benefit plan qualified under Section
401(a) of the Internal Revenue Code, as amended (the "Code") (any such
plan hereinafter referred to as a "Qualified Plan"), all Accrued
Obligations shall be paid to Xxxxxxx'x estate or designated
beneficiaries, as the case may be, in a lump sum (to the extent such
obligations are able to be paid, under the terms of the plan for which
such obligation arose, in a lump sum) in cash within 30 days after the
date of Xxxxxxx'x death (subject to the requirements of Section 409A of
the Code), and, otherwise, in accordance with the terms of the
applicable plan or applicable law."
5. Section 5.3 Company Termination for Cause or Resignation Other Than
for Good Reason. The first sentence of Section 5.3 of the Agreement is hereby
amended and restated in its entirety to read as follows:
"If Xxxxxxx'x employment hereunder is terminated by the Company for
Cause or by Xxxxxxx pursuant to Section 4.1(c)(ii) above, or by Xxxxxxx
by non-renewal pursuant to Section 1.2 (a) or (b), the Company shall
have no further obligation to Xxxxxxx under this Agreement, except
that, unless otherwise required by any Qualified Plan, Xxxxxxx shall be
paid all Accrued Obligations to the date of termination (other than the
obligation specified in clauses (b) and (c) of Section 5.1 hereof) in a
lump sum (to the extent such obligations are able to be paid, under the
terms of the plan for which such obligation arose, in a lump sum) in
cash within 30 days after the date of termination (subject to deferral
for six months if and as required to comply with Section 409A of the
Code), and, otherwise, in accordance with the terms of the applicable
plan or applicable law."
6. Section 5.4 Company Termination Without Cause or Due to Disability;
Resignation Following Good Reason; Non-Renewal.
(a) Section 5.4(a) of the Agreement is hereby amended and restated
in its entirety to read as follows:
"Unless otherwise required by any Qualified Plan, Xxxxxxx shall be paid
all Accrued Obligations to the date of termination in a lump sum (to
the extent such obligations are able to be paid, under the terms of the
plan for which such obligation arose, in a lump sum) in cash within
thirty (30) business days after the date of termination (subject to
deferral for six months if and as required by Section 409A of the
Code), and, otherwise, in accordance with the terms of the applicable
plan or applicable law."
(b) The first clause of Section 5.4(b) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"Xxxxxxx shall be paid, as severance pay, within thirty (30) business
days after the date of termination (subject to deferral for six months
if and as required by Section 409A of the Code):"
(c) Section 5.4(b)(ii) of the Agreement is hereby amended to add a
new sentence to the end thereof to read as follows:
"Notwithstanding the foregoing, for purposes of any termination of
employment occurring during the Employment Period, the "Remaining Term"
under this Clause (ii) shall mean the period from the date of
termination through the immediately succeeding December 31."
(d) Section 5.4(c) of the Agreement is hereby deleted.
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7. Section 5.5 Termination Following a Change in Control.
(a) The heading of Section 5.5 of the Agreement is hereby amended
and restated in its entirety to read as follows:
"Section 5.5 Termination of Executive In Connection With a Change in
Control."
(b) Section 5.5(a) of the Agreement is hereby amended and restated
in its entirety to read as follows:
"Unless otherwise required by any Qualified Plan, Xxxxxxx shall be paid
all Accrued Obligations to the date of termination in a lump sum (to
the extent such obligations are able to be paid, under the terms of the
plan for which such obligation arose, in a lump sum) in cash within
thirty (30) business days after the date of termination (subject to
deferral for six months if and as required by Section 409A of the
Code), and, otherwise, in accordance with the terms of the applicable
plan or applicable law."
(c) The first clause of Section 5.5(b) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"Xxxxxxx shall be paid, as severance pay, within thirty (30) business
days after the date of termination (subject to deferral for six months
if and as required by Section 409A of the Code):"
(d) Section 5.5(b) of the Agreement is hereby amended to add a new
sentence to the end thereof to read as follows:
"In addition, notwithstanding the foregoing, in the event Xxxxxxx'x
employment is terminated by the Company without Cause at any time
within one year following a Change in Control, then such termination
shall be deemed, solely for purposes of Section 5, to be a termination
covered under this Section 5.5 rather than under Section 5.4, and
Xxxxxxx shall be entitled to the amounts provided for under this
Section 5.5 in lieu of the amounts provided for under Section 5.4."
(e) Section 5.5(b)(ii) of the Agreement is hereby amended to add a
new sentence to the end thereof to read as follows:
"Notwithstanding the foregoing, for purposes of any termination of
employment occurring during the Employment Period, the "Remaining Term"
under this Clause (ii) shall mean the period from the date of
termination through the immediately succeeding December 31."
(f) Section 5.5(c) of the Agreement is hereby deleted in its
entirety and replaced by the following:
"In the event Xxxxxxx'x employment is terminated by the Company without
Cause (i) within ninety (90) days prior to the effective date of a
Change in Control, or (ii) after the first public announcement of the
pendency of the Change in Control (but on or prior to the effective
date of the Change in Control), Xxxxxxx shall be paid, as additional
severance pay, within thirty (30) days after the date of such Change in
Control (subject to deferral for six months if and as required by
Section 409A of the Code), a lump sum cash amount equal to the excess
(if any) of (A) 300% of Xxxxxxx'x annual Base Salary at the rate in
effect immediately preceding such termination of employment, plus 300%
of Xxxxxxx'x annual Incentive Compensation paid or payable with respect
to whichever of the immediately preceding two fiscal years of the
Company ending prior to the date of termination was higher, over (B)
the amount payable to Xxxxxxx pursuant to Section 5.4(b)(i) of this
Agreement. The amounts provided for under this Section 5.5(c) are in
addition to, and not in lieu of, the amounts provided for under Section
5.4."
8. Section 8 Legal Fees. The first sentence of Section 8 of the Agreement
is hereby amended and restated in its entirety to read as follows:
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"If the Company fails to timely make any payment due hereunder and
Xxxxxxx seeks to collect such amounts or negotiate a settlement
thereof, and either (i) reaches a settlement for any part or all of the
payments provided for hereunder, or (ii) successfully enforces the
terms of this Agreement, through litigation or arbitration, by or
through a lawyer, the Company shall advance all reasonable costs of
such collection or enforcement, including reasonable legal fees and
disbursements and other fees and expenses which Xxxxxxx may incur,
promptly after submission of documentation reasonably acceptable to the
Company in respect of such costs and expenses."
9. Section 10 of the Agreement is hereby amended by adding the following
new subsection (h), to read as follows:
"The parties intend that all payments under this Agreement be made on a
basis that complies with Section 409A of the Code."
10. The Company shall pay or reimburse Xxxxxxx for all reasonable legal
fees incurred by him in connection with the negotiation and execution of this
Amendment.
11. This Amendment shall be effective as of the date hereof.
12. Except as expressly provided in this Amendment, the Agreement is hereby
ratified and shall remain in full force and effect.
13. This Amendment may be executed in counterparts, each one of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
XXXXX XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President,
Chief Financial Officer
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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