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EXHIBIT 10.58
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
AMERICAN COIN MERCHANDISING, INC., D/B/A SUGARLOAF CREATIONS, INC.
AND
W. XXXX XXXX
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT (the "Amendment") is entered into as
of July 31, 2001 ("Amendment Effective Date"), between AMERICAN COIN
MERCHANDISING, INC., d/b/a SUGARLOAF CREATIONS, INC. (hereinafter called
"Employer") and W. Xxxx Xxxx (hereinafter called "Employee"), and amends that
employment agreement entered into by the parties as of December 1, 2000
("Original Agreement").
PRELIMINARY STATEMENT
The parties, for their mutual benefit, now wish to amend the Original Agreement.
Capitalized terms herein used which are not herein defined shall have the
respective meanings ascribed to them in the Original Agreement. All references
to the term "Agreement" in the Original Agreement shall be deemed to include all
of the terms and conditions of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENT. The parties agree to the following amendments to the
Original Agreement:
a. Section 4 of the Original Agreement is hereby deleted and
replaced in its entirety by the following:
"1. Compensation. Commencing January 1, 2001, Employee will
receive a base salary of $150,000 per year, payable at the
intervals regularly established for payment of salaries by
Employer. The Employee shall also be entitled to participate
in the Employer's executive Bonus Plan. Employee shall also
receive stock options for 50,000 shares of Employer's common
stock pursuant to Employer's Amended and Restated Stock Option
Plan (the "Plan"), effective as of November 21, 2000. Such
options shall be granted at the market price as of the date of
grant and shall be evidenced by the Employer's standard Option
Agreement with the following modifications: (i) such options
shall be exercisable annually over a two-year period, based on
Employee's continued employment with the Employer; and (ii) in
the event that upon a Change of Control (defined below)
transaction, any surviving corporation refuses to assume or
continue such options, or to substitute similar options for
such options then outstanding under the Plan, the Option
Agreement shall provide for immediate acceleration of all such
options that are then unvested."
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b. Section 7(d)(iv) ((d)(iv) of Confidential Information and
Noncompetition) of the Original Agreement is hereby deleted
and replaced in its entirety by the following:
"(i) Directly or indirectly disclose to any other person,
entity, partnership, or corporation the names of past or
present customers of Employer, or of any related company. The
parties agree that the names of these customers are
confidential and proprietary and constitute trade secrets of
Employer within the meaning of C.R.S. Section 8-2-113(2)(b)
and C.R.S. Section 7-74-102(4)."
c. Section 8(g) (Advisory Services) of the Original Agreement is
hereby deleted and replaced in its entirety by the following:
"(g) Advisory Services. Subsequent to the Date of Termination,
Employee agrees to be available to Employer for reasonable
advisory services for a period of one year."
d. Section 9(c)(ii) (After Change of Control) of the Original
Agreement is hereby deleted and replaced in its entirety by
the following:
"(ii) After Change of Control. If, after a Change of Control
(as defined below), Employer terminates Employee's employment
other than for Cause, or the Employee terminates his
employment for Good Reason, the Employer shall pay to the
Employee the following amounts: (A) the Employee's Earned
Salary; (B) a cash amount (the "Severance Amount") equal to
one and one-half times the Employee's then-current annual base
salary; and (C) the Accrued Obligations."
The Earned Salary shall be paid in accordance with
the Employer's regular payroll practices. The Severance Amount
shall be paid in one lump sum within thirty (30) days after
the Date of Termination."
e. Section 9(c)(iii) (Benefits) of the Original Agreement is
hereby deleted and replaced in its entirety by the following:
"(iii) Benefits. For any termination of employment under this
paragraph 9(c), the Employee (and, to the extent applicable,
his dependents) shall be entitled, for one year, to continue
participation in Employer's health plan. During this period,
to the extent any such benefits cannot be provided under the
terms of the applicable health plan, the Employer shall make
COBRA payments sufficient to provide Employee and Employee's
family with an equivalent level of coverage as existed prior
to the Date of Termination."
f. Section 10(a)(iii) (Section (iii) of Change of Control
Defined) of the Original Agreement is hereby deleted and
replaced in its entirety by the following:
"(iii) the stockholders of the Employer approve (A) a
dissolution, liquidation or sale of substantially all of the
assets of the Company; (B) a merger or consolidation in which
the Company is not the surviving corporation; or (C) a
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reverse merger in which the Company is the surviving
corporation but the shares of the Company's common stock
outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form
of securities, cash or otherwise ((A) - (C) defined as a
"Corporate Event")."
2. COUNTERPARTS. This Amendment may be executed in counterparts, and by
each party wherever such party is located, and delivered by facsimile
telephonic transmission, and such execution and delivery shall be
legally binding on the parties to the same extent as if original
signatures in ink were delivered in person.
3. NO OTHER AMENDMENTS. Except as herein set forth, the Original Agreement
has not been modified and, as amended by this Amendment, remains of
full force and effect. To the extent there are any inconsistencies or
ambiguities between the specific subject matter of this Amendment and
the Original Agreement, the terms of this Amendment shall supersede the
Original Agreement.
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IN WITNESS OF THIS AMENDMENT WHEREOF, the parties have executed this Amendment
as of the day and year first above written.
EMPLOYER: AMERICAN COIN MERCHANDISING, INC.,
d/b/a SUGARLOAF CREATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its: President and Chief
Executive Officer
EMPLOYEE: /s/ W. Xxxx Xxxx
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W. Xxxx Xxxx
Address: 0000 Xxxxxxxx Xx
Xxxxxxxx, XX 00000
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