Exhibit 10.5A
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (the "AGREEMENT") is made
as of July __, 2007, by and among Xxxxxx & Xxxxxxx Holding, LLC, a Delaware
limited liability company ("Holding") and Xxxxxx & Xxxxxxx, LLC, a Delaware
limited liability company ("R&R"), each having its principal place of business
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, and Xxxxxxx Xxxxxxxxxxx,
with a principal place of business c/o 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000 (the "EXECUTIVE").
W I T N E S S E T H :
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WHEREAS, the parties hereto are parties to that certain Employment
Agreement dated as of March 1, 2007 between the Executive, Holding and R&R; and
WHEREAS, the parties desire to amend and restate Exhibit A to the
Agreement to modify the bonus plan applicable to the Executive.
NOW THEREFORE, in consideration of the agreements of the parties set
forth herein and other good and valuable consideration, the parties hereto
hereby agree as follows:
1. Exhibit A - SUMMARY OF BONUS PLAN to the Agreement is hereby
deleted in its entirety and replaced with a new Exhibit A - AMENDED AND RESTATED
SUMMARY OF BONUS PLAN in the form annexed hereto as Schedule 1.
2 All other terms and conditions contained in the Agreement shall
remain in full force and effect and shall not be affected by this Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
/s/ Xxxxxxx Xxxxxxxxxxx
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XXXXXXX XXXXXXXXXXX
XXXXXX & XXXXXXX HOLDING, LLC
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Chief Financial Officer
XXXXXX & XXXXXXX, LLC
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Chief Financial Officer
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SCHEDULE 1
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SUMMARY OF BONUS PLAN
EXHIBIT A
The Executive shall participate in the Bonus Plan (the "Plan")
summarized below. Capitalized terms used but not defined below have the meaning
assigned to such terms in the Employment Agreement to which this summary is
attached.
a. The Participants in the Plan shall be Xxxxxxx
Xxxxxxxxxxx, Xxxxxx Xxxxx, and Xxxx X. Xxxxx, III (each a "PRINCIPAL" and
collectively the "PRINCIPALS"). A Participant who ceases to be employed by the
Company for any reason shall not be entitled to any payment under the Plan with
respect to any fiscal year of the Company commencing after such termination of
employment, but the Participant (or his estate or designated beneficiary) may
receive a payment from the Plan with respect to the year of termination of the
Participant's employment to the extent so provided herein or in his employment
agreement with the Company.
b. The aggregate amount payable pursuant to the Plan to the
Principals for each fiscal year or portion thereof during the Employment Term of
each Participant shall be determined by the Committee before the end of each
fiscal year of the Company that commences on or after January 1, 2007. Such
determination shall be made by the Committee based on the overall revenue and
profits of the Company and the productivity of the Participants. The amount to
be paid under this Plan for the fiscal year that commenced January 1, 2007,
shall be determined by reference to the Company's and the Participant's
performance for the entire year, and no incentive compensation in addition to
that payable under the Plan shall be paid to the Participants for the two-month
period that ended February 28, 2007.
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c. In no event will the sum of the amounts payable under
the Plan to or in respect of all the Principals with respect to a fiscal year of
the Company, together with the Base Compensation payable to the Principals under
their employment agreements and (without duplication) the salary, bonuses, other
current and deferred compensation and benefits (excluding any insurance premiums
paid for key man life insurance for the benefit of the Company and any equity
based compensation granted prior to July 10, 2007), and associated payroll taxes
imposed on the Company, with respect to all employees of the Company and its
subsidiaries, exceed 55% of the gross revenues of the Company and its
subsidiaries as determined under United States Generally Accepted Accounting
Principles as consistently applied and reflected on the consolidated financial
statements of the Company (the "REVENUE-BASED CAP") for that period. To the
extent the aggregate of the amounts paid under the Plan with respect to any
fiscal year is less than the Revenue-Based Cap amount, the difference shall be
added to the Revenue-Based Cap amount for subsequent fiscal years of the Company
in determining the amounts that may be paid under the Plan with respect to such
years. It is anticipated that, in general, the aggregate amounts paid annually
under the Bonus Plan with respect to each fiscal year or portion thereof to
which the Revenue-Based Cap is applicable will be approximately equal to the
Revenue-Based Cap amount for such year or portion thereof, except insofar as the
Board of Holding reasonably determines, in consultation with the Principals,
that amounts are required to be set aside to provide for expansion of the
business or businesses of the Company, for working capital, and to fund reserves
for the payment of its obligations.
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d. The allocable share of each of the Principals of the
aggregate amount to be paid under the Plan for each fiscal year shall be
determined by the Committee before the end of each fiscal year, by reference to
the individual productivity of the Principal during such year and his overall
contribution to the profits and success of the Company during such period. The
amount payable to each Participant under the Plan with respect to any fiscal
year, to the extent not paid during that fiscal year, shall be paid on the 15th
day of the third month following the end of the fiscal year. It is anticipated
that amounts will be advanced to each Principal by the Company as compensation
on a quarterly basis during the fiscal year, or at such other intervals as the
Committee may determine to be appropriate, based on projections by such
committee as to the aggregate amounts expected to be paid to or in respect of
the Principals under this Plan for the fiscal year as further described in
paragraph (e) below. If the aggregate amount advanced to or in respect of a
Principal under the preceding sentence for a fiscal year of the Company exceeds
the amount ultimately determined to be payable in respect of that Principal
under the Plan for such year, the excess shall be refunded by the Principal (or
his successor, executor or administrator, as the case may be) to the Company
within 10 days after the Committee informs the Principal of such determination.
e. In determining the amounts to be advanced to each
Principal on an estimated basis during a fiscal year, the Committee is
authorized to cause estimated payments to be made from time to time under the
Plan equal in the aggregate to 90% of the payments under the Plan for the
preceding fiscal year, as and when made to the Participants in such preceding
fiscal year. If, however, a determination is made by the Committee, in
consultation with the Principals, that the maximum amount payable under
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this Plan for a fiscal year is anticipated to be less than 90% of the amounts
paid under the Plan for the preceding fiscal year, the amounts authorized to be
advanced under this paragraph and the preceding paragraph (d) shall be limited
to 90% of the projected payments under the Plan for the current fiscal year.
f. The parties acknowledge that the Committee may endeavor
in good faith, in consultation with compensation consultants retained by the
Committee, to amend the Plan for post-2007 fiscal period taking into account the
evolving circumstances of the Company. Notwithstanding the foregoing, any such
amendment to the Plan will provide the Principals with the opportunity to
receive incentive compensation, for fiscal years or portions thereof following
2007, that is no less favorable to the Principals than that which was provided
to them under the provisions of the Plan, as summarized in paragraphs (a)
through (e) above, for prior periods. The provisions of the Plan as set forth in
the preceding paragraphs shall continue to apply until such an amendment is
agreed upon by the parties and adopted by the Company.
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