Exhibit 10.28
AMENDMENT NO. 1 TO
CHANGE OF CONTROL AGREEMENT
This Amendment No. 1 to Change of Control Agreement is made as of the
1st day of May, 1998, by and between Xxxxxxx Enterprises, Inc., a Louisiana
corporation (the "Company"), and Xxxxxxx X. Xxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company has entered into a Change of Control Agreement
with the Employee dated as of December 5, 1995 (the "Change of Control
Agreement").
WHEREAS, the Employee has agreed to serve as the Company's Executive
Vice President - Finance and Chief Financial Officer.
WHEREAS, the Company has approved, effective May 1, 1998, certain
related changes in the terms of the Employee's employment.
NOW THEREFORE, the Company and the Employee agree as follows:
SECTION 1. CHANGE OF CONTROL AGREEMENT. Except as expressly amended
herein, all of the terms and provisions of the Change of Control Agreement
shall remain in full force and effect.
SECTION 2. AMENDMENT TO ARTICLE I, SECTION 1.1. Article I, Section
1.1 of the Change of Agreement is hereby amended to read in its entirety as
follows:
1.1 EMPLOYMENT AGREEMENT. After a Change of Control (defined below),
this Agreement supersedes the Employment Agreement dated as of August 1,
1995 as amended by Amendment No. 1 dated as of January 1, 1997 and
Amendment No. 2 dated as of May 1, 1998, between Employee and the Company
(the "Employment Agreement") except to the extent that certain provisions
of the Employment Agreement are expressly incorporated by reference herein.
After a Change of Control (defined below), the definitions in this
Agreement supersede definitions in the Employment Agreement, but
capitalized terms not defined in this Agreement have the meanings given to
them in the Employment Agreement.
SECTION 3. AMENDMENT TO ARTICLE II, SECTION 2.2. Article II, Section
2.2, paragraphs (a) and (b) of the Change of Control Agreement are hereby
amended to read in their entirety as follows:
(a) SALARY. A salary ("Base Salary") at the rate of $285,000
per year, payable to the Employee at such intervals no less
frequent than the most frequent intervals in effect at any time
during the 120-day period immediately preceding the Change of
Control or, if more favorable to the Employee, the intervals in
effect at any time after the Change of Control for other peer
employees of the Company and its affiliated companies.
(b) BONUS. For the period beginning November 1, 1997, the
Employee shall be eligible to receive a bonus (the "Bonus") of up
to $150,000 for each 12-month period thereafter. Such Bonus
shall be comprised of two elements, the quantitative element and
the qualitative element:
(i) The quantitative element shall be equal to 75% of
the maximum Bonus of $150,000 and shall be based on the
attainment of certain goals to be established by the
Company's compensation committee, or any similar body, and
Employee.
(ii) The qualitative element shall be 25% of the
maximum Bonus of $150,000 and shall be awarded at the
discretion of the Company's Chairman of the Board. The
Chairman of the Board and Employee shall establish incentive
goals and other criteria for the award of the qualitative
element.
The Bonus shall be paid in cash no later than 30 days
following the date on which the information needed to calculate
the Bonus becomes available.
SECTION 4. AMENDMENT TO ARTICLE II, SECTION 2.4. Article II, Section
2.4, paragraphs (a) and (e) of the Change of Control Agreement are hereby
amended to read in their entirety as follows:
(a) TERMINATION BY COMPANY FOR REASONS OTHER THAN DEATH,
DISABILITY OR CAUSE; BY EMPLOYEE FOR GOOD REASON. If, after a
Change of Control and during the Employment Term, the Company
(or, if applicable the ultimate parent company), terminates the
Employee's employment other than for Cause, death or Disability,
or the Employee terminates employment for Good Reason, the
Company shall pay to the Employee in a lump sum in cash within 30
days of the Date of Termination an amount equal to three times
the sum of (I) the amount of Base Salary in effect at the Date of
Termination, plus (ii) the maximum Bonus for which the Employee
is eligible for the 12-month period in which the Date of
Termination occurs.
(e) TERMINATION BY EMPLOYEE FOR REASONS OTHER THAN GOOD
REASON. If, after a Change of Control and during the Employment
Term, the Employee's status as an employee is terminated by the
Employee for reasons other than Good Reason, then the Company
shall pay to the Employee an amount equal to a single year's Base
Salary in effect at the Date of Termination, payable in equal
installments over a two-year period at such intervals as other
salaried employees of the Company are paid.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and signed as of the date indicated above.
XXXXXXX ENTERPRISES, INC.
By: /s/ XXXXX X. XXXXXXXXX
___________________________________
Xxxxx X. XxXxxxxxx
Compensation Committee Chairman
EMPLOYEE:
/s/ XXXXXXX X. XXXXX
______________________________________
Xxxxxxx X. Xxxxx
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