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EXHIBIT 10.9
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (the "Amendment") and the attached Schedule A are entered into as
of the 30th day of April, 2001 by Xxx Xxxx Corporation, a Delaware corporation
(the "Company"), and Xxxx X. Xxxxxxxx. To the extent there is any actual or
apparent conflict between this Amendment and the terms of the Employment
Agreement, this Amendment shall prevail.
Whereas, Company and the Employee desire to amend the Agreement in certain
respects;
Now therefore, the Agreement is hereby amended as follows:
Section 2 of the Agreement is hereby amended as follows:
"(e) Merger with Pulte Corporation. Notwithstanding anything in this
Agreement to the contrary, upon the effective date of the merger of
Company and Pulte Acquisition Corp. pursuant to the merger agreement
dated April 30, 2001 (the "Merger Effective Date") between Company,
Pulte Corporation and Pulte Acquisition Corporation, Employee will, at
her election, either continue as an at will employee of Company or
become a consultant to Company for the period (the "Post-Merger
Period") beginning on the Merger Effective Date and continuing until
the first to occur of (1) the first anniversary of the Merger Effective
Date and (2) termination of the Employee's employment or consulting
arrangement because of Employee's death or disability, or termination
by Company (if Company terminates, she will automatically become a
consultant for the remainder of the one-year period following the
Merger Effective Date). If Employee elects to continue as an Employee,
she may, at any time during the Post-Merger Period, elect to cease
being an employee and then must continue as a consultant, on an
as-needed basis by Company (making herself available as reasonably
requested by the Company) until the end of the Post-Merger Period. Once
Employee elects to be a consultant, she may not return to employee
status without the consent of Company."
Section 11 is amended as follows:
"For purposes of this Section, a Competing Business is defined as a
business whose primary business is conventional homebuilding and/or
age-restricted homebuilding. The Restrictive Covenant of this Section
11 will continue until the end of the Post-Merger Period."
Section 11 (a) (2) is amended as follows:
"During the Post-Merger Period, directly or indirectly, for herself, or
on behalf of, or in conjunction with, any other person or entity, seek
or hire and/or hire any
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individual who is employed by Company and/or Pulte Acquisition Corp.,
unless previously terminated by the Company and/or Pulte Acquisition
Corp."
Section 11 (f) is amended by the addition of the following at the end
thereof:
"Notwithstanding the foregoing, if the Change-in-Control results from
the merger of Company and Pulte Acquisition Corp. pursuant to the
merger agreement described in Section 2(e) above, the restrictive
covenant contained in this Section 11 will continue until the end of
the Post-Merger Period."
Breach and Opportunity to Cure: No damages for any breach of the foregoing
provisions, including Schedule A, shall be available in the absence of providing
to Xx. Xxxxxxxx 30 days' written notice and opportunity to cure.
Xxx Xxxx Corporation
By: /s/ Xxxxxxxxx X. Xxxxx
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Its: Senior Vice President and General Counsel
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/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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Schedule A
Xxxx X. Xxxxxxxx shall receive a fee of $600,000 on the first anniversary of the
Merger Effective Date.
Consulting / Advisory Duties: Xxxx X. Xxxxxxxx will herself reasonably available
to act in an advisory capacity and to provide professional guidance, input,
counsel and advice as to matters relevant to the Company's existing business
locations and affairs, and such other matters that the Company shall request.
