AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, dated as of October 8, 1998, is by and between Xxxx
Corporation, a Delaware corporation ("Company"), and Xxxxxx X. XxXxxxxx
("Executive").
WHEREAS, Executive and Company entered into that certain Employment
Agreement dated August 1, 1997 which sets forth the terms and conditions for
Executive's continued employment with the Company (the "Agreement"); and
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company to amend certain provisions of the
Agreement in order to retain and motivate Executive; and
WHEREAS, Executive and Company now desire to amend such provisions of
the Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Section 5 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"5. CERTAIN TERMINATION BENEFITS. Notwithstanding anything else
contained herein to the contrary, in the event (i) the Company elects not to
renew the term of this Agreement pursuant to Section 3 hereof, (ii) the
Company terminates this Agreement pursuant to Section 4(c), or (iii)
Executive terminates this Agreement pursuant to Section 4(d), then Executive
shall be entitled to the following benefits:
(a) SEVERANCE. The Company shall continue to pay (in accordance with
its normal payroll procedures) the Base Salary to Executive (or Executive's
estate if Executive dies) for a sixty (60) month period (the "Severance
Period") after the effective date of such expiration or termination.
(b) BENEFITS. During the first twelve (12) months of the Severance
Period, the Executive shall continue to receive all fringe benefits
provided under Sections 2(b) through 2(i) hereof.
(c) OFFSET. The payments which would have been due and payable in
accordance with Section 5(a) hereof shall be reduced by an amount equal to
any amounts that Executive receives in connection with any other employment
during the Severance Period.
Any fringe benefits received by Executive in connection with any other
employment that are reasonably comparable, but not necessarily as
beneficial, to Executive as the fringe benefits then being provided by
the Company pursuant to Section 5(b) hereof, shall be deemed to be the
equivalent of, and shall terminate the Company's responsibility to
continue providing the fringe benefits then being provided by the Company
pursuant to Section 5(b) hereof. The Company acknowledges that, if
Executive's employment with the Company is terminated, Executive shall
have no duty to mitigate damages.
(d) GENERAL RELEASE. Acceptance by Executive of any amounts pursuant
to this Section 5 shall constitute a full and complete release by Executive
of any and all claims Executive may have against the Company, its officers,
directors and affiliates, including, but not limited to, claims he might
have relating to Executive's cessation of employment with the Company;
provided, however, that there may properly be excluded from the scope of
such general release the following:
(i) claims that Executive may have against the Company for
reimbursement of ordinary and necessary business expenses incurred by
him during the course of his employment;
(ii) claims that may be made by the Executive for payment of
Base Salary, fringe benefits or stock options properly due to him; or
(iii) claims respecting matters for which the Executive is
entitled to be indemnified under the Company's Certificate of
Incorporation or Bylaws, respecting third party claims asserted or
third party litigation pending or threatened against the Executive.
A condition to Executive's receipt of any amounts pursuant to this
Section 5 shall be Executive's execution and delivery of a general release as
described above. In exchange for such release, the Company shall, if
Executive's employment is terminated without Cause, provide a release to
Executive, but only with respect to claims against Executive which are
actually known to the Company as of the time of such termination."
2. Notwithstanding anything to the contrary in Section 6(c) of the
Agreement, Executive and the Company hereby agree that in the event of a
Change of Control (as defined in the Agreement) prior to January 1, 2000, for
purposes of Section 6 of the Agreement, the term "Good Reason" shall be
deemed to also include termination by Executive for any reason or for no
reason, and any termination by Executive of his employment shall constitute
termination for "Good Reason". If no Change of Control occurs prior to
January 1, 2000, from and after that date, the term "Good Reason" shall have
the meaning set forth in the Agreement without regard to this Amendment.
3. Executive and the Company further agree that all other terms and
provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Agreement as of the date first above written.
By: /s/ Xxxxxx X. XxXxxxxx
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Xxxxxx X. XxXxxxxx
XXXX CORPORATION
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Its: Executive Vice-President and Chief
Logistics Officer
Compensation Committee of the Xxxx
Corporation Board of Directors
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its: Chairman
