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EXHIBIT 10.2D
THIRD AMENDMENT TO
FOURTH AMENDED AND RESTATED AGREEMENT
THIRD AMENDMENT effective as of July 1, 1997, to FOURTH AMENDED AND
RESTATED AGREEMENT made and entered into as of January 1, 1993, by and between
XXXXXXX COMPUTER SERVICES, INC., a Delaware corporation (hereinafter referred
to as the "Company"), and XXXXXXXX XXXXXXXXX of Mettawa, Illinois (hereinafter
referred to as "Dimitriou").
RECITALS
The Company and Dimitriou entered into a Fourth Amended and Restated
Agreement dated as of January 1, 1993 (the "Agreement"), pursuant to which
Dimitriou was to serve the Company as its Chairman of the Board and to serve
thereafter as a consultant to the Company. The Company and Dimitriou have
previously entered into a First Amendment to the Agreement to amend Section
E.2(a) of the Agreement. The Company and Dimitriou now wish to enter into this
Third Amendment so that the Agreement, as so amended, accurately reflects their
current intentions.
AGREEMENTS
IN CONSIDERATION OF the foregoing and the mutual undertakings described in
this Third Amendment, the Company and Dimitriou hereby:
1. Agree that the Consulting Period described in Section C.1. of the
Agreement shall continue until the date of Dimitriou's seventy-second (72nd)
birthday, subject to earlier termination in the event of Dimitriou's death,
Permanent Disability (as defined in said Section C.1.) or termination for
"cause" as provided for in said Section C.1.
2. Amend Section E.2(a) of the Agreement so that such section
provides, in its entirety, as follows:
(a) Commencing on the date of his Retirement and continuing
until the later of (I) the date of Dimitriou's death or (II) the tenth
anniversary of his Retirement, and provided that, after Retirement,
Dimitriou does not commit any action that would have permitted the
Company to have terminated his employment for "cause" under the
provisions of Section B.1(v) (including, if
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applicable, the proviso thereto), the Company shall pay to Dimitriou a
monthly Supplemental Retirement Benefit determined as provided below;
provided, however, that if Dimitriou should die before the tenth
anniversary of his Retirement, all remaining monthly Supplemental
Retirement Benefit payments shall be made to his Designated Beneficiary
under Section E.2(b). The first payment of the Supplemental Retirement
Benefit shall be made on the first day of the first month following his
Retirement, and the last payment of the Supplemental Retirement Benefit
shall be made on the first day of the later of (A) the one hundred
twentieth month following his Retirement or (B) the month during which his
death occurs. During the Consulting Period described in Section C.1. of
this Agreement, the monthly Supplemental Retirement Benefit payable under
this Section E.2(a) shall be $21,791.67 reduced by (A) 100% of his monthly
social security retirement benefits, if any, and (B) the monthly amount
payable under a single-life annuity for the life of Dimitriou commencing
on the date of his Retirement which is the actuarial equivalent (using the
then current Pension Benefit Guaranty Corporation interest rate for
valuing immediate annuities under single-employer pension plans) of the
benefits payable to Dimitriou under any retirement plan or program
sponsored or maintained by the Company, including, without limitation, any
amounts payable to him under the Company's Profit Sharing and Retirement
Plan and the Company's Supplemental Profit Sharing Plan that are
attributable to Company contributions, but excluding any amounts
attributable to contributions made by the Company on behalf of Dimitriou
under the Company's Profit Sharing and Retirement Plan pursuant to a
salary reduction agreement under Section 401(k) of the Internal Revenue
Code of 1986. After the end of the Consulting Period described in Section
C.1 of this Agreement, the monthly Supplemental Retirement Benefit payable
under this Section E.2(a) shall be $30,125 reduced by the amounts
described in parts (A) and (B) of the immediately preceding sentence. The
Company shall designate the above provisions of this Agreement relating to
the Supplemental Retirement Benefit as a "Plan" subject to the provisions
of the Xxxxxxx Computer Services, Inc. Benefit Trust.
3. Amend Section F.1 of the Agreement so that such section
provides, in its entirety, as follows:
1. Material Change. For purposes of this Agreement, a
"Material Change" shall be deemed to have occurred if any of the
following should occur:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
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Act) of 35% or more of either (i) the then outstanding shares of
capital stock of the Company (the "Outstanding Company Capital Stock") or
(ii) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors
(the "Company Voting Securities"); provided, however, that (X) any
acquisition by or from the Company or any of its subsidiaries, (Y) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any of its subsidiaries or (Z) any
acquisition by any corporation with respect to which, following such
acquisition, more than 65% of the then outstanding shares of capital stock
of such corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Capital Stock
and Company Voting Securities immediately prior to such acquisition, in
substantially the same proportion as their ownership, immediately prior to
such acquisition, of the Outstanding Company Capital Stock and Company
Voting Securities, as the case may be, shall not constitute a Material
Change; or
(b) Individuals who, as of September 6, 1995, constituted the
Board of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of such Board; provided, however,
that any individual who becomes a member of the Board of Directors of the
Company subsequent to such date whose election, or nomination for election
by the stockholders of the Company, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
deemed to be a member of the Incumbent Board; but provided further, that
no individual whose election or initial assumption of office as a director
of the Company occurs as a result of an actual or threatened election
contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) with respect to the election or
removal of directors, or any other actual or threatened solicitation of
proxies or consents by or on behalf of any person other than the Board of
Directors of the Company, shall be deemed to be a member of the Incumbent
Board; or
(c) Approval by the stockholders of the Company of a
reorganization, merger or consolidation (a "Business Combination") with
respect to which all or substantially all of the individuals and entities
who were the respective beneficial owners of the Outstanding Company
Capital Stock and Company Voting Securities immediately prior to such
Business Combination do not, following such Business Combination,
beneficially own, directly or indirectly, more than 65% of, respectively,
the then outstanding shares of capital stock and the combined voting power
of the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from the Business Combination, in substantially the same
proportion as
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their ownership immediately prior to such Business Combination of the
Outstanding Company Capital Stock and Company Voting Securities, as the
case may be; or
(d) Approval by the stockholders of the Company of a sale or
other disposition of all or substantially all of the assets of the Company
other than to a corporation with respect to which, following such sale or
disposition, more than 65% of, respectively, the then outstanding shares
of capital stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors
is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Capital Stock and Company
Voting Securities immediately prior to such sale or disposition, in
substantially the same proportion as their ownership of the Outstanding
Company Capital Stock and Company Voting Securities, as the case may be,
immediately prior to such sale or disposition; or
(e) A complete liquidation or dissolution of the Company.
4. Acknowledge and agree that, in all other respects, the Agreement
shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the Company has caused this Third Amendment to be
executed on its behalf by the Chairman of the Compensation Committee of its
Board of Directors and Dimitriou has executed this Third Amendment, all as of
the day and year first above written.
XXXXXXX COMPUTER SERVICES, INC.
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx III
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Its Secretary Chairman of the Compensation
Committee of the Board of Directors
/s/ Xxxxxxxx Xxxxxxxxx
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XXXXXXXX XXXXXXXXX
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