AMENDMENT NO. 3 TO THE XXXXXXX X. XXXX/XXXX COMPANY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
DATED AS OF DECEMBER 19, 1997
THIS AMENDMENT to the Amended and Restated Employment Agreement, dated
as of December 19, 1997, as amended on December 18, 1998 and April 19, 2000 (as
so amended, the "Employment Agreement"), by and between Xxxx Company ("XXXX"), a
Wisconsin corporation with its principal place of business in West Bend,
Wisconsin, and Xxxxxxx X. Xxxx ("Executive"), is made as of June 13, 2001.
RECITALS
WHEREAS, XXXX and Executive have previously entered into the
Employment Agreement and wish to enter into this Amendment to amend the
Employment Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties agree as follows:
Section 2 of the Employment Agreement shall be deleted in its entirety
and replaced with the following:
Executive's "term of employment," as this phrase is used
throughout this Agreement, shall be for a period commencing
on January 1, 1999 and ending on June 13, 2004 unless
Executive's employment is terminated earlier with the
consequences described herein in which event the term of
employment shall extend through the date of such
termination.
Section 5 of the Employment Agreement shall be revised by adding the
following new paragraph after subsection (e) and prior to the paragraph
beginning "In addition":
Executive shall also receive, at the expense of XXXX,
outplacement services, on an individualized basis at a level
of service commensurate with Executive's most senior status
with XXXX during the 180-day period prior to the date of the
Change in Control, provided by a nationally recognized
senior executive placement firm selected by XXXX with the
consent of Executive, provided that the cost to XXXX of such
services shall not exceed 20% of Executive's Current Base
Salary. In the alternative, Executive, at his election, may
choose to receive the net amount of these services, up to a
maximum of $15,000, to be paid as a lump sum within 30 days
of the Termination Date as outlined above.
Section 5 of the Employment Agreement shall be further revised by
adding the following new subsection (vii) to the definition (the "Definition")
of "Good Reason":
(vii) Any voluntary termination of employment by Executive
for any reason where the notice of termination is delivered
by Executive to XXXX at any time within ninety (90) days
following the six-month anniversary of the Change in
Control.
Section 5 of the Employment Agreement shall be further revised by
deleting the word "or" from the end of subsection (v) to the Definition and by
deleting the period (".") from the end of subsection (vi) to the Definition and
replacing it with a semicolon followed by the word "or" ("; or").
The following new Section 18 shall be added to the Employment
Agreement:
Section 18. Expenses and Interest. If (i) a dispute arises
with respect to the enforcement of Executive's rights under
this Agreement, (ii) any legal or arbitration proceeding
shall be brought to enforce or interpret any provision
contained herein or to recover damages for breach hereof, or
(iii) any tax audit or proceeding is commenced that is
attributable in part to the application of Section 4999 of
the Code, in any case so long as Executive is not acting in
bad faith, then XXXX shall reimburse Executive for any
reasonable attorney's fees and necessary costs and
disbursements incurred as a result of such dispute, legal or
arbitration proceeding or tax audit or proceeding
("Expenses"), and prejudgment interest on any money judgment
or arbitration award obtained by Executive calculated at the
rate of interest announced by M&I Bank, Milwaukee,
Wisconsin, from time to time as its prime or base lending
rate from the date that payments to Executive should have
been made under this Agreement. Within ten days after
Executive's written request therefor, XXXX shall pay to
Executive, or such person or entity as Executive may
designate in writing to XXXX, Executive's reasonable
Expenses in advance of the final disposition or conclusion
of any such dispute, legal or arbitration proceeding.
IN WITNESS WHEREOF, XXXX has caused this Amendment to be executed by
its duly authorized officer, and Executive has hereunto set his hand, all as of
the date set forth above.
XXXX COMPANY EXECUTIVE
By: /s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx
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Name: Xxxx X. Xxxxxx Xxxxxxx X. Xxxx
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Title: Director
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