EXHIBIT 10.34
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to Employment Agreement is entered
into as of the ____ day of August, 1995, between SpectraVision, a Delaware
corporation, having its principal place of business at 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxxxx, Xxxxx ("Employer"), Spectradyne, Inc., a Texas corporation, having
its principal place of business at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxx, and
Xxxxxx X. Xxxxxxx, an individual and a resident of the state of Texas, with an
address at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxx 00000 ("Employee").
RECITALS
1. Employer and Employee entered into an Employment Agreement dated as of
January 1, 1995.
2. Employer filed a voluntary Chapter 11 petition under Title 11 of the
United States Code on June 8, 1995. Employer filed a motion to assume the
Restated Employment Agreement on June 21, 1995.
3. To improve the likelihood that the Bankruptcy Court would approve
assumption of the Restated Employment Agreement, Employer and Employee have
agreed to amend the Agreement.
In consideration of the mutual promises and covenants hereinafter
contained, it is agreed as follows:
AGREEMENT:
1. Paragraph 3(d) is amended by adding the following sentence:
For the year ending December 31, 1995, the amount of the Annual
Incentive Bonus shall be 50% of Employee's then Annual Base Salary
payable on the earlier to occur of (i) the effective date of a
confirmed plan of reorganization for Employer or Spectradyne, Inc., and
(ii) December 31, 1995 or January 1, 1996 at Employee's option.
Amendment to Xxxxxxx Employment Agreement
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2. The Agreement is amended by deleting paragraph 5 and substituting the
following in its place:
5. Breach by Employer
(a) Employee may terminate his employment with Employer upon a
material breach by Employer of this Agreement which remains uncured
for thirty (30) days after written notice thereof by Employee to
Employer. Employer agrees that the following events, among others,
constitute a material breach by Employer of this Agreement: (i)
Employee is assigned duties inconsistent with his position, duties,
responsibility and status with Employer as set forth in this
Agreement (other than a promotion or advancement); (ii) there is a
change in Employee's reporting responsibilities (other than a
promotion or advancement); (iii) Employer materially reduces the
Employee benefits, taken as a whole, available to Employee,
including the benefits described in Section 4(a) hereof; (iv)
Employee is relocated to any place other than Dallas County, Texas,
except for required travel by Employee on Employer's business;
provided however, other breaches by Employer of this
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Agreement may also constitute a material breach.
(b) Upon termination of employment by Employee under Section 5(a),
Employer shall pay Employee as liquidated damages, and not as a
penalty, in a lump sum or on an annuity basis, at Employee's sole
option, an amount equal to 150% of Employee's Annual Base Salary
for one year. It is acknowledged and agreed to by the parties
hereto that because actual damages would be difficult to ascertain
in the event that Employer materially breaches this Agreement, the
amount of liquidated damages provided for herein is reasonable and
appropriate to remedy any such breach and to compensate Employee
for any damages incurred by him hereunder. If the amount due under
this Section 5(b) is paid in a lump sum, the amount paid to
Employee shall be discounted to a present value at a discount rate
equal to the prime rate of Texas Commerce Bank on the date of
payment plus 1%.
(c) Upon termination of employment by Employee under Section 5(a),
Employee shall have no obligation to seek other employment or
otherwise to mitigate damages. If Employee obtains other employment
after his termination of employment
Amendment to Xxxxxxx Employment Agreement
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with the Company but during the Employment Period (as if Employee
had not terminated his employment), the amount due him under this
Section 5 shall be reduced by the excess (the "Excess"), if any, of
(i) his annual base salary with his new employer, plus any
additional amounts the payment of which has been guaranteed by his
new employer, during the remainder of the Employment Period after
his termination of employment over (ii) the Annual Base Salary for
the remainder of the Employment Period. Employee shall pay any
Excess on the last day of each month during the remainder of the
Employment Period in an amount equal to the Excess for that month.
Except as provided in this Section 5(c), Employer shall not reduce
any payment to Employee under this Agreement by any compensation
received by Employee from other employment.
(d) Employee's receipt of amounts under this Section 5 shall not
effect or constitute a waiver of his rights to receive unpaid
amounts accrued under Section 3 of this Agreement to the date of
termination or his right to any benefits of reimbursement under
Section 4 or Section 13 of the Agreement.
3. The Agreement is amended by adding a new paragraph 17:
17. Assignment to Spectradyne. Employee acknowledges that the services
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it provides under the terms of the Agreement are for the benefit of
Employer and its subsidiaries, including Spectradyne, and Employee
consents to the assignment of this Agreement to Spectradyne at any
time.
Amendment to Xxxxxxx Employment Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the day and year above first written.
SPECTRAVISION, INC.
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By: Xxxx Xxxx
Chief Executive Officer
SPECTRAVISION, INC.
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By: Xxxx Xxxx
Chief Executive Officer
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Xxxxxx X. Xxxxxxx
Amendment to Xxxxxxx Employment Agreement
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