EXHIBIT 10.1
XXXXXX A.S.L., LTD.
July 16, 2003
Xx. Xxx X. Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Dear Xxx:
This letter, when countersigned by you, will confirm our CORRECTED AND RESTATED
agreement (replacing the letter agreement signed on June 23, 2003), to amend the
terms of the Company's employment agreement with you dated August 27, 2001 (the
"2001 Agreement"), as amended by a letter agreements dated October 31, 2001 (the
"2001 Amendment") and October 31, 2002 (the "2002 Amendment") as follows:
1. The 2001 Agreement, as amended by the 2001 Amendment and the 2002
Amendment, is hereinafter referred to as the "Agreement". All terms used but not
defined herein shall have the respective meanings set forth in the Agreement.
2. In the event of a "Change of Control" (as hereinafter defined), in
lieu of your right to certain equity awards of restricted stock and options
pursuant to paragraph 3 of the 2002 Amendment, the Company shall pay you the
following:
$100,000.00, upon the closing of the transaction which results in
such Change of Control (the "Closing"); plus
$100,000.00, within ten (10) days after a determination is made of
the Company's "Working Capital" (hereinafter defined), but in any event within
forty (40) days after the Closing; provided, however, that if the Working
Capital of the Company is determined to be in excess of $51,259,000.00, such
$100,000.00 payment shall be increased by an amount equal to five-tenths of one
percent (0.5%) of such excess; and provided, further, that if the Working
Capital of the Company is determined to be less than $51,259,000.00, such
$100,000.00 shall be reduced to $75,000.00.
"Working Capital" means, with respect to the Company and its subsidiaries: (i)
cash and restricted cash (for purposes of clarity, cash includes cash
equivalents); plus, (ii) accounts receivable, net of reserves; plus, (iii)
inventory (for purposes of clarity, for finished goods, net of reserves); plus,
(iv) piece goods at contractor (for purposes of clarity, net of reserves); plus,
(v) piece goods at AEL (for purposes of clarity, net of reserves); plus, (vi)
prepaid and other current assets (for purposes of clarity, not including income
tax refund, deferred tax asset, or any Federal or state income tax asset); less,
(vii) accounts payable (for purposes of clarity, post-petition); less, (viii)
accrued expenses and other (for purposes of clarity, not including (a) interest
payable, (b) deferred income or current portion of deferred income, and (c)
income tax payable, deferred tax liability, or any Federal or state income tax
accrual); less, (ix) revolver (for purposes of clarity, under the Company's
Post-Petition Bank Credit Agreement, cash borrowings only, and whether or not
the revolver is classified as a short term or long term liability), in each case
as determined in accordance with the Company's historical internal reporting
accounting practices, through the date of the Closing, and as reflected as a
line item on the Company's internal reporting balance sheets.
"Change of Control" has the meaning set forth in paragraph 1 of the 2002
Amendment. An acquisition which otherwise constitutes a Change of Control shall
not be excluded from the definition thereof by reason of your agreeing to become
employed by the Company from and after the Closing.
3. In addition, in the event of a Change of Control, in lieu of (i)
your right to severance as set forth in paragraph 4 of the 2001 Agreement and
(ii) your right to a Supplemental Payment as set forth in paragraph 1 and
paragraph 2 of the 2002 Amendment, the Company shall pay you $495,000.00 upon
the Closing. You acknowledge that, in consideration of such payment, you shall
not have or claim to have any further right to severance payments under the
Agreement.
4. Except as expressly set forth herein, the terms and conditions of
your Agreement shall remain in full force and effect.
Please confirm your agreement to the above modifications by executing the
enclosed copy of this letter in the place provided and returning it to me.
Sincerely,
Xxxxxx A.S.L., Ltd.
By: /s/ Xxxx X. Idol
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Xxxx X. Idol
Agreed:
/s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
