Exhibit 10(f)
AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Agreement, dated as of January 26, 2001, is made between EMONS
TRANSPORTATION GROUP, INC. (formerly known as Emons Holdings, Inc.) a Delaware
corporation with offices at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx,
Xxxxxxxxxxxx 00000 (together with any and all present and future affiliates and
subsidiaries thereof, the "Company"), and XXXXXX XXXXXXXX, residing at 0000
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 formerly at 00 Xxxx Xxxx Xxxxx, Xxxxxxxxx, XX
00000 (the "Employee"). All capitalized terms contained in this Agreement not
otherwise defined herein have the meanings defined in the Amended and Restated
Employment Agreement, dated as of December 31, 1989, and amendments thereto
dated as of May 26, 1994, June 17, 1998, November 19, 1998 and March 20, 2000,
between the Company and Employee.
RECITALS
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The Company and Employee previously entered into an Employment Agreement,
dated as of December 31, 1986 (the "1986 Employment Agreement"), between the
Company and Employee, pursuant to which the Company engaged Employee to serve as
Chairman of the Board and Chief Executive Officer of the Company and perform
services for the Company pursuant to the terms and condition of the 1986
Employment Agreement.
The Company and Employee amended and restated the 1986 Employment Agreement
to read in full as set forth in the Amended and Restated Employment Agreement
dated as of December 31, 1989 between the Company and Employee (as subsequently
amended by amendments dated May 26, 1994, June 17, 1998, November 19, 1998 and
March 20, 2000, the "Amended and Restated Employment Agreement").
The Company and Employee desires to further amend the Amended and Restated
Employment Agreement in certain respects as provided herein.
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In consideration of the promises herein contained and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
to amend the Amended and Restated Employment Agreement as set forth herein:
1. Amendment to Section 6(d). Section 6(d) is hereby amended and restated
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in its entirety to read as follows:
(d) Termination by the Company other than for Due Cause. The foregoing
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notwithstanding, the Company may terminate Employee's employment prior to the
expiration of the term of this Agreement for whatever reason it deems
appropriate; provided, however, that in the event such termination is not due to
Disability as provided in Section 6(b) or based on Due Cause as provided in
Section 6(c), Employee shall be entitled to a lump sum payment, payable within
thirty (30) days after his termination of employment, of an amount equal to
three (3) times the Average Annual Base Salary (as defined below) pursuant to
Section 3 for the three (3) calendar years most recently ended prior to his
termination plus three (3) times the Average Annual Bonus (as defined below) for
the three (3) calendar years most recently ended prior to his
termination; provided that, except in the case of a termination by the Company
without Due Cause which occurs, or which under section 6(f) is deemed to occur,
within 1 (one) year after a Change in Control of the Company (as defined in
section 6(f)), if the Board of Directors determines that the payment of such
lump sum amount would have a materially adverse effect on the financial
condition of the Company, the Company may elect to pay such amount to Employee
in 36 equal consecutive monthly installments payable on the first day of each
month commencing within 30 days after such termination. For the purposes of this
subsection, "Average Annual Base Salary" means the aggregate base salary paid to
Employee for the applicable period pursuant to section 3 divided by three (3),
and "Average Annual Bonus" means the aggregate of all bonuses and other cash
incentive compensation paid to Employee during the applicable period pursuant to
the Incentive Compensation Plan or otherwise divided by three(3). Employee shall
be under no obligation to seek subsequent employment and upon obtaining
subsequent employment shall be under no obligation to offset any amounts earned
from such subsequent employment (whether as an employee, a consultant or
otherwise) against the aforesaid termination payment due under this section. The
Company shall continue to pay the automobile allowance pursuant to Section 4 and
shall continue to carry the life, disability, health, hospitalization, surgical
and major medical insurance coverage for Employee for a 36-month period
following termination of employment, unless prohibited by the insurer or by law,
in which case the Company shall provide the economic equivalent. If coverage is
continued, the Company shall give the Employee the right to assume the life,
disability, health, hospitalization, surgical and major medical insurance
coverage or to reimburse the Company for its continuing payments under such
policies, unless prohibited by the insurer or by law. For purposes of this
Agreement, "economic equivalent" shall mean the cost of the premiums paid by the
Company for the insurance coverage provided to Employee by the Company during
the 12 consecutive month period prior to such termination. Any such continuing
insurance coverage, or economic equivalent thereof, will be offset by comparable
coverage to Employee in connection with subsequent employment, if any. Other
rights and benefits of Employee under employee benefit plans and programs of the
Company, generally, will be determined in accordance with the terms and
provisions of such plans and programs.
2. Amendment to Section 6(f). The first sentence of Section 6(f),
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Termination of Employment Following a Change in Control is hereby amended and
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restated to read as follows:
(f) Employee may terminate his employment with the Company within one (1)
year after a Change in Control of the Company, as defined below, and such
termination of employment shall be deemed as a termination of employment by the
Company without Due Cause under this section.
3. Addition of Section 6(h). Section 6(h) shall be added and shall read
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in its entirety as follows:
(h) Reduction of Payments. In the event that the payments and benefits to
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be paid or provided to Employee pursuant to Section 6, either alone or together
with any other benefits or payments to be provided to Employee pursuant to this
Agreement or otherwise, constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code, then such payments shall
be reduced to the largest amount that the Company can pay to Employee without
such payments being nondeductible by the Company as a result of the application
of Section 280G. The determination of whether any payments shall be reduced
pursuant to this Section 6(h) shall be made in good faith by the certified
public accounts of the Company and shall be conclusive and binding on the
Company and Employee.
4. Except as herein specifically amended, all terms, covenants and
provisions of the Amended and Restated Employment Agreement, shall remain in
full force and effect and shall be performed by the parties thereto according to
its terms and provisions.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment to the Amended and Restated Employment Agreement as of the date first
above stated.
EMONS TRANSPORTATION GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and CFO,
Controller and Secretary
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
