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EXHIBIT (10G)
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (this "Amendment") dated as of February 24, 1998 is
made to the Employment agreement (the "Agreement") effective as of the first day
of May, 1992, by and between ROCHESTER & PITTSBURGH COAL COMPANY, a Pennsylvania
corporation (hereinafter called the "Company"), and Xxxxxx X. Xxxxxx, Xx.
(hereinafter called "Xxxxxx"). All capitalized terms used herein but not defined
herein shall have the respective meanings assigned to them in the Agreement.
RECITAL
Xxxxxx is presently employed by the Company as its President and Chief
Executive Officer pursuant to the Agreement. The Board of Directors of the
Company believes it is in the best interests of the Company and the stockholders
of the Company to seek the sale of the Company, and, in connection therewith,
wishes to provide incentive to Xxxxxx to cooperate in the efforts to sell the
Company and maximize the consideration payable to the Company's stockholders.
It is the purpose of this Amendment to set forth the severance benefits
that will be provided to Xxxxxx in the event of a change in control of the
Company under the circumstances as described herein. This Amendment supersedes
and is in lieu of the Amendment to the Agreement dated as of February 27, 1997
by and between the Company and Xxxxxx (the "1997 Amendment") and, and except as
expressly amended by this Amendment, the terms and conditions of the Agreement
shall remain in full force and effect and are hereby ratified and confirmed.
1. Paragraph 2 of the Agreement is hereby amended so that as amended
Paragraph 2 shall read in its entirety as follows:
"2. Term.
"(a) Subject to the provisions of subparagraph 2(b) hereof,
until notice of termination has been given by either party, the term of Xxxxxx'
employment under the Agreement shall be extended automatically each day for one
additional day so that at all times after the date hereof and until notice of
termination has been given, the term of the employment shall be for a period of
three years. Subject to the provisions of subparagraph 2(b) below, in the event
that one party gives notice of termination to the other, then the term of
Xxxxxx' employment will expire on that day which is three years after the day on
which the notice is given.
"(b) Notwithstanding anything contained in this Agreement to
the contrary, in the event of any change in control of the Company (as defined
herein), the term of Xxxxxx' employment hereunder shall expire on the date of
consummation of the change in control of the Company without any action by
Xxxxxx or the Company and without any requirement of notice. For a period of 90
days after the day on which a change in control of the Company is consummated
and Xxxxxx' employment hereunder is terminated, Xxxxxx shall make himself
reasonably available to render consulting services to the Company as specified
from time to time by the management of the Company.
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EXHIBIT (10G)
"(c) For the purposes of this Amendment, a "change in control
of the Company" shall be deemed to have occurred if during the term of the
Agreement (i) any "person" or "group" (as such terms are used in Rule 13d-3
under the Securities Exchange Act of 1934) other than Xxxxxx or a group of which
Xxxxxx is a member acquires shares of the Company in a transaction or series of
transactions that result in such person or group directly or indirectly first
owning beneficially more than 50% of the outstanding shares of the Company's
Common Stock after the date of this Agreement or (ii) as the result of or in
connection with any cash tender offer or exchange offer, merger or other
business combination, sale of assets or contested election of directors or any
combination of the foregoing transactions (a "Transaction"), the persons who
were the directors of the Company before the Transaction shall cease to
constitute a majority of the Board of Directors of the Company or any successor
to the Company."
2. Paragraph 5 of the Agreement is hereby amended so that as amended
Paragraph 5 shall read in its entirety as follows:
"5. Compensation
"(a) For all services rendered by Xxxxxx under this Agreement
during the term of his employment, the Company shall pay Xxxxxx a base salary at
such annual rate as shall be determined by the Board of Directors from time to
time, provided that the base salary shall not be less than $339,600 per year. In
addition, Xxxxxx shall be paid such bonuses and other additional compensation,
if any, as the Company's Board of Directors may determine from time to time in
its sole discretion; provided that Xxxxxx in his sole discretion may elect, by
notice to the Company given within ten (10) days after he is awarded a bonus, to
have any bonus paid to him wholly in stock in such proportions as he may
determine. Xxxxxx' base salary shall be paid to him in equal monthly
installments or in such other manner as may be mutually agreed.
"(b) Upon the date of consummation of a change in control of
the Company as defined herein, the Company shall make a payment on such date to
Xxxxxx in such amount as is equal to three times his then annual rate of salary
plus $55,255.
"(c) For the 90-day period during which Xxxxxx agrees to make
himself reasonably available to render consulting services to the Company
following consummation of a change in control of the Company as provided in
subparagraph 2(b) of this Agreement, Xxxxxx shall be paid a consulting fee of
$1,000 for each day or portion thereof during which consulting services are
rendered by Xxxxxx to the Company."
"(d) For 36 consecutive months following the date of the
change in control of the Company or the death of Xxxxxx, whichever is earlier,
Xxxxxx shall continue to be treated as an employee of the Company under, and
shall be entitled to all medical benefits, programs and arrangements of the
Company, as if Xxxxxx were still employed by the Company during such period and
such benefits, programs and arrangements were maintained during such period on
terms and conditions no less favorable to Xxxxxx than those which existed
immediately prior to the change in control of the Company or the death of
Xxxxxx. If, despite the
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EXHIBIT (10G)
provisions of this subparagraph 5(d), medical benefits under any such plan,
program or arrangement shall not be payable or provided under any such plan,
program or arrangement to Xxxxxx or his dependents, because of any change in the
terms or conditions of such plan, program or arrangement or because Xxxxxx is no
longer an employee of the Company, the Company itself shall to the extent
necessary pay or provide for payment of such benefits to Xxxxxx and his
dependents.
"(e) For purposes hereof, any salary or other payments made to
Xxxxxx by any wholly or majority owned subsidiary of the Company shall be
treated as having been made by the Company."
3. Paragraph 8 of the Agreement is hereby amended so that as amended
Paragraph 8 of the Agreement shall read in its entirety as follows:
"8. Pension Matters.
"(a) Xxxxxx is a participant in the Company's pension plan, as
the same may be amended hereafter from time to time (the "Plan") and shall be
entitled to receive such benefits thereunder as are provided pursuant to the
terms and conditions thereof.
"(b) Xxxxxx shall also be entitled to receive a pension
supplement, except in the circumstances described in subparagraph 8(d) or
Paragraph 9 of the Agreement, whereby the Company will pay to Xxxxxx or his
spouse upon the commencement of the payment of the pension benefit under the
Plan, as a monthly supplement to the monthly benefit payable under the Plan, an
amount equal to the sum of the following:
"(i) an amount equal to the monthly pension benefit,
which would have been payable to Xxxxxx or his spouse pursuant to the Plan at
Xxxxxx' normal retirement age of 62, without regard to the limitations
(hereinafter referred to as the "Statutory Limitations") imposed by Sections
401(a)(17) and 415 of the Internal Revenue Code of 1986, as now or hereafter
amended or supplemented (the "Code"); plus
"(ii) an amount equal to the difference between (A) the
monthly pension benefit actually payable to Xxxxxx at age 62 pursuant to the
Plan and (B) the monthly pension benefit which would have been payable to Xxxxxx
or his spouse at Xxxxxx' normal retirement age of 62 pursuant to the Plan
without application of the Statutory Limitations.
"The supplemental payments hereunder shall be calculated in conformity
with the benefit option selected by Xxxxxx under the Plan.
"Such supplemental payments will terminate at the earlier of (A) the
expiration of ten years from the date of the first monthly supplemental payment
or (B) the termination of pension payments pursuant to the Plan to Xxxxxx, his
spouse or the survivor of them, if applicable.
"(c) If the date of consummation of a change in control of the
Company occurs before the commencement of the pension supplement provided in
subparagraph 8(b) hereof, in lieu of that pension supplement the Company shall:
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EXHIBIT (10G)
"(i) calculate the amount of Xxxxxx' accrued monthly
pension supplement as of such consummation date assuming that Xxxxxx elects to
begin receiving his pension benefit under the Plan at age 62 in the form of a
qualified joint and survivor annuity and that Xxxxxx' service with the Company
is equal to the sum of (x) Xxxxxx' actual service with the Company to the day
before such consummation date and (y) three additional years; and
"(ii) make a payment to Xxxxxx on such consummation date
equal to the present value of the accrued monthly pension supplement calculated
under clause (i) of this subparagraph 8(c) using a discount rate of 120% of the
applicable federal rate in effect on such date determined under Section 1274(d)
of the Code, compounded semiannually.
"(d) In the event that Xxxxxx' spouse becomes entitled to
receive pension benefits under the Plan as a result of Xxxxxx' death while
employed by the Company prior to July 22, 2001, no monthly supplemental benefit
shall be paid to his widow."
4. A new Paragraph 17 is hereby added to the Agreement which Paragraph 17
shall read in its entirety as follows:
"17. Miscellaneous General Provisions.
"(a) Non-Alienation. Xxxxxx shall not have any right to
pledge, hypothecate, anticipate or in any way create a lien upon any amounts
provided under the Agreement as amended hereby, and no benefits payable
hereunder shall be assignable in anticipation of payment either by voluntary or
involuntary acts or by operation of law.
"(b) Deductibility of Payments. In the event that any payment
or benefit received or to be received by Xxxxxx hereunder, whether payable
pursuant to the terms of the Agreement as amended hereby or any other plan,
arrangement or agreement with the Company or any corporation affiliated with the
Company (an "Affiliate") within the meaning of Section 1504 of the Code would
not be deductible, in whole or in part, by the Company or an Affiliate as a
result of Section 280G of the Code the payments to be made pursuant to the
Agreement as amended hereby shall be reduced until no portion of the payments is
not deductible as a result of Section 280G of the Code or the payments are
reduced to zero. For purposes of this limitation, (i) no portion of the
payments, the receipt or enjoyment of which Xxxxxx shall have effectively waived
in writing prior to the date of payment, shall be taken into account and (ii) no
portion of the payments shall be taken into account which is in the opinion of
tax counsel selected by the Company's independent auditors and acceptable to
Xxxxxx does not constitute a "parachute payment" within the meaning of Section
280G(b)(2) of the Code.
"(c) Non-Mitigation. Xxxxxx shall not be required to mitigate
the amount of any payment or benefit provided for under the Agreement as amended
hereby by seeking other employment or otherwise, nor shall the amount of any
payment provided for under the Agreement as amended hereby be reduced by any
compensation received subsequent to the date of the change in control of the
Company by Xxxxxx as a result of any employment or retirement benefits from any
other source, provided, however, that the Company shall not be required to
provide Xxxxxx and his eligible
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EXHIBIT (10G)
dependents with medical insurance coverage as long as Xxxxxx and his eligible
dependents are receiving comparable medical insurance coverage from another
employer.
"(d) Interest on Amounts Due Under the Agreement. Any amount
due to Xxxxxx under the Agreement as amended hereby which is not paid when due
shall bear interest at the rate of one percent per month from the date such
amount was due until the date when paid.
"(e) Club Memberships. Xxxxxx shall be entitled to retain
after the date of consummation of the change in control of the Company the
ownership of all club memberships provided to him by the Company during Xxxxxx'
term as an executive officer of the Company, provided that on and after the date
of consummation of the change in control of the Company Xxxxxx shall be
responsible for the payment of all on-going costs for the maintenance of such
club memberships.
"(f) Transfer of Automobile. Not later than the date of
consummation of the change in control of the Company, the Company shall assign
to Xxxxxx, without the payment of any consideration by Xxxxxx to the Company,
the title to the automobile currently made available by the Company to Xxxxxx."
5. This Amendment supersedes and is in lieu of the 1997 Amendment and,
except as expressly amended by this Amendment, the terms and conditions of this
Agreement shall remain in full force and effect and are hereby ratified and
confirmed.
IN WITNESS WHEREOF, the undersigned parties have hereunto set their hands
and seals to this Agreement the day and year first above written.
[SEAL]
Attest: ROCHESTER & PITTSBURGH COAL COMPANY
/s/ XXXXX X. XXXXXX By: /s/ XXXXX XXXXXX
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Assistant Secretary Xxxxx Xxxxxx, Vice President-
Finance and Secretary
Witness:
/s/ XXXX X. XXXXX /s/ XXXXXX X. XXXXXX, XX.
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Xxxxxx X. Xxxxxx, Xx.
