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EXHIBIT 10.32
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is entered into as of the
10th day of April, 2001 by and between CERES GROUP, INC., a Delaware
corporation, referred to in this Agreement as the "Company," and XXXXXXX X.
XXXXXX, XX., referred to in this Agreement as "Xxxxxx."
RECITALS:
Employer and Employee entered into a certain Employment Agreement as of
the 1st day of October, 1998 (the "Original Agreement"). The parties now desire
to amend the Original Agreement, as hereinafter set forth.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Section 1 of the Original Agreement is hereby deleted in its
entirety and the following inserted in its place:
"The Company hereby employs Xxxxxx as its Chief Financial
Officer for a period of two (2) years, commencing on April 1,
2001 through June 30, 2003; provided, however, that this
Agreement shall automatically renew for succeeding one (1)
year terms, unless the Company provides Xxxxxx with at least
sixty (60) days' advance written notice that this Agreement
and Xxxxxx'x employment shall terminate as of the close of
business on June 30 of the then-current original or renewal
termination date (as the case may be). However, regardless of
any provisions of this Agreement to the contrary, or which
could be construed to the contrary, in that event, or in the
event Xxxxxx shall leave the employment of the Company at any
time other than as a voluntary quit under Section 6(d) or for
cause under Section 6(a), Xxxxxx shall be entitled to
severance pay equal to eighteen (18) months of Xxxxxx'x
then-current annual salary (less normal administrative
deductions), payable in eighteen (18) equal monthly
installments on the first day of each month, such payments to
be in lieu of any other severance or termination payment from
the Company.
In the event that Xxxxxx'x employment is terminated in
connection with a "change of control" of the Company, Employee
shall be entitled to receive cash compensation equal to two
(2) years of Xxxxxx'x then-current annual salary (less normal
administrative deductions), payable in lump sum within thirty
(30) days of such "change of control," such payment to be in
lieu of any other severance or termination payment contained
herein. "Change of control" shall mean the occurrence of any
of the following events:
(i) a tender offer shall be made and consummated for the
ownership of 50.1% or more of the outstanding voting
securities of the Company;
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(ii) the Company shall be merged or consolidated with
another corporation and, as a result of such merger
or consolidation, less than 50.1% of the outstanding
voting securities of the surviving or continuing
corporation shall be owned in the aggregate by the
former stockholders of the Company as the same shall
have existed immediately prior to such merger or
consolidation; or
(iii) the Company shall sell substantially all of its
operating assets to another corporation which is not
a wholly-owned subsidiary;
(iv) a person, within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on the date hereof) of
the Exchange Act shall acquire, other than by reason
of inheritance, (50.1%) or more of the outstanding
voting securities of the Company (whether directly,
indirectly, beneficially or of record). In
determining whether a Change of Control has occurred,
gratuitous transfers made by a person to an affiliate
of such person (as determined by the Board of
Directors of the Company), whether by gift, devise or
otherwise, shall not be taken into account. For
purposes of this Agreement, ownership of voting
securities shall take into account and shall include
ownership as determined by applying the provisions of
Rule 13d-3(d)(1)(i) as in effect on the date hereof
pursuant to the Exchange Act."
2. Section 2(c) of the Original Agreement is hereby deleted in
its entirety and the following inserted in its place:
"Xxxxxx shall also participate in the Company's bonus plan for
officers or such other incentive compensation or plans as may
be established by the Company's Board of Directors (the
"Officer Bonus Plan"). Xxxxxx'x bonus shall be payable as soon
as it reasonably can be determined. Notwithstanding the
foregoing, Xxxxxx shall be entitled to defer the receipt of
his salary and/or bonus pursuant to procedures adopted or
plans maintained by the Company."
3. Sections 6(b) and 6(c) of the Original Agreement are hereby
deleted in their entirety.
4. Section 7(d) of the Original Agreement is hereby deleted in
its entirety and the following inserted in its place:
During Xxxxxx'x employment hereunder and, in the event of a
change of control or termination of Employee's employment for
any reason other than for cause (under Section 16) or a
voluntary quit, for a period of twelve (12) months, Xxxxxx
shall not engage, directly or indirectly, whether as an owner,
partner, employee, officer, director, agent, consultant or
otherwise, in any location where the Company or any of its
subsidiaries is engaged in business after the date hereof and
prior to the termination of Xxxxxx'x employment, in a business
the same or similar to, any business now, or at any time after
the date hereof and prior to Xxxxxx'x termination, conducted
by the Company or any of its subsidiaries, provided, however,
that the mere ownership of 5% or less of the stock of a
company whose
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shares are traded on a national securities exchange or are
quoted on the National Association of Securities Dealers
Automated Quotation System shall not be deemed ownership which
is prohibited hereunder
5. Except to the extent expressly amended by this First
Amendment, each and every term of the Original Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this First Amendment as of the
date first above written.
EMPLOYER: EMPLOYEE:
CERES GROUP, INC. XXXXXXX X. XXXXXX, XX.
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx, Xx.
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Its: Chief Executive Officer
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