a) If, during the period commencing on the 120th day immediately prior to a Change of Control and ending on the 90th day immediately after a Change of Control, Executive's employment shall have been terminated by the Company (other than For Cause) or...
EXHIBIT 10.1
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 dated as of November 6, 2007 (this "Amendment")
to that certain Employment Agreement, by and between Xxxxxx Xxxxxx, Ltd., a
Delaware corporation (the "Company"), and Xxxxxxxx Xxxxx (the "Executive"), as
amended.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company and the Executive are parties to that certain
Employment Agreement dated as of June 15, 2005 (the "Original Agreement"), a
copy of which is attached hereto Exhibit A; and
WHEREAS, the Executive and the Company desire to amend the Original
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Effective as of the date hereof, the Original Agreement is
hereby amended as follows:
A. The first sentence of Section 3 of the original
agreement shall be amended and restated in its
entirety as follows:
`The term of the Executive's employment, unless
sooner terminated in accordance with the provisions
set forth herein, shall be for a period of three and
one-half (3-1/2) years commencing July 1, 2005
through December 31, 2008 (the "Initial Term").'
B. Section 5.5(a) of the Original Agreement shall be
deleted in its entirety and in lieu thereof the
following paragraph shall be inserted:
(a) If, during the period commencing on the
120th day immediately prior to a Change of
Control and ending on the 90th day
immediately after a Change of Control,
Executive's employment shall have been
terminated by the Company (other than For
Cause) or by Executive for Good Reason (as
defined below), the Executive shall receive
in cash, within ten (10) days of
termination, an amount equal to three (3)
times the total compensation received by the
Executive pursuant to Sections 4.1, 4.2(b)
and 4.5 of this Agreement for the preceding
twelve (12) month period ending on the last
previous December 31, except that in lieu of
the actual Base Salary component received
during such period under Section 4.1 of this
Agreement, there shall be substituted the
annual Base Salary to which the Executive
was entitled as of the date of termination.
As used herein, the term "Good Reason" shall
mean the occurrence of any of the following:
(i) the assignment to Executive,
without his consent, of any duties
inconsistent in any substantial and
negative respect with his
positions, duties, responsibilities
and status with the Company as
contemplated hereunder or
diminution of such position, duties
and status, if not remedied by the
Company within thirty (30) days
after receipt of written notice
thereof from Executive;
(ii) any removal of Executive, without
his consent, from any positions or
offices Executive held as
contemplated hereunder (except in
connection with the termination of
Executive's employment by the
Company For Cause or on account of
Total Disability pursuant to the
requirements of this Agreement), if
not remedied by the Company within
thirty (30) days after receipt of
written notice thereof from
Executive;
(iii) a reduction by the Company of
Executive's Base Salary as in
effect as contemplated hereunder,
except in connection with the
termination of Executive's
employment by the Company For Cause
or due to Total Disability pursuant
to the requirements of this
Agreement;
(iv) any termination of Executive's
employment by the Company during
the Term that is not effected
pursuant to the requirements of
this Agreement;
(v) any material breach by the Company
of the terms of this Agreement that
is not remedied by the Company
within thirty (30) days after
receipt of written notice thereof
from Executive;
(vi) the relocation of Executive's work
location, without Executive's
consent, to a place more than
seventy five (75) miles from the
location set forth herein; or
(vii) failure by any successor to the
Company to expressly assume all
obligations of the Company under
this Agreement, which failure is
not remedied by the Company within
thirty (30) days after receipt of
written notice thereof from
Executive.
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C. A new Section 5.6 shall be inserted:
Section 5.6. Release. Payment of severance hereunder
is conditioned on Executive's executing and not
revoking a general release in such form as shall be
reasonably requested by the Company. The Company
shall also execute a similar release in favor of
Executive.
2. As hereinabove modified, all of the terms and provisions of
the Original Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 as of date first set forth above.
Xxxxxx Xxxxxx, Ltd.
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------------
Xxxxxxxx X. Xxxxxx
Chief Executive Officer
/s/ XXXXXXXX XXXXX
-----------------------------------------
Xxxxxxxx Xxxxx
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EXHIBIT A
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Original Employment Agreement dated June 15, 2005
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