AMENDMENT NO. 3
TO THE EMPLOYMENT AGREEMENT
DATED AUGUST 15, 0000 XXXXXXX
XXXXXX & XXXXXX GROUP, INC.
AND XXXXXXX X. XXXXXX
This is Amendment No. 3, dated as of June 30, 1994, to the Employment
Agreement dated as of August 15, 1990 between Xxxxxx & Xxxxxx Group, Inc. (the
"Company"), a New York corporation and Xxxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company and the Executive are parties to an Employment
Agreement dated as of August 15, 1990 (the "Agreement") and as amended by
Amendment No. 1 dated as of June 30, 1992 and Amendment No. 2, dated as of
January 3, 1993.
WHEREAS, the Company and the Executive desire to amend the Agreement as
set forth below, in accordance with the recommendations and approval of the
Compensation Committee of the Board of Directors of the Company and the mutual
considerations received by the Company and the Executive as outlined below:
NOW, THEREFORE, the Agreement is hereby amended and the Executive and
the Company agree as follows:
1) Section 3 (a) of the Agreement shall be amended to read as follows:
3. Terms and Duties.
(a) Period of Employment. The period of the Executive's employment
under this Agreement (the "Period of Employment") shall commence August 15,
1990 and shall terminate December 31, 1999 or until it ceases or is terminated
sooner as provided in paragraph 6 (a) (disability), 7 (death), or 8 (c)
(termination of employment).
2) Section 4 (a) of the Agreement shall be amended to read as follows:
(a) Base Salary. The Company shall pay the Executive a fixed salary
(the "Base Salary") at an annual rate adjusted as provided below. The Base
Salary, as adjusted, shall be payable in accordance with the customary payroll
practices of the Company, but not less frequently than monthly. On January 1,
1995, and on each January 1 thereafter during the Period of Employment, the
Base Salary shall be increased in accordance with the following formula (the
"Formula"), to the extent that the Formula would produce an increase:
Base Salary = Computed Annual Salary plus Incremental Annual Compensation
Computed Annual Salary = Computed Annual Salary as of December 31 immediately
preceding the January 1 with respect to which the increased Computed Annual
Salary is being computed, provided that for the January 1, 1995 determination,
the December 31 Computed Annual Salary shall mean $313,907, multiplied by the
product of (A divided by B), where:
A is the Consumer Price Index, All Urban Consumers (CPI-U), U.S. City Average
for All Items (standard reference base period 1982-1984 = 100) (the "CPI"), as
published during the September immediately preceding the January 1 with
respect to which the increased Computed Annual Salary is being computed; and
B is the CPI as published during the September next immediately preceding the
January 1 (thus one year earlier than A above) with respect to which the
increased Computed Annual Salary is being computed.
Incremental Annual Compensation = (Computed Annual Salary computed as of
January 1 multiplied by thirty percent (30%)) divided by (1 minus the sum of C
plus D), where:
C is the maximum marginal federal tax rate for married individuals filing
joint returns for the year of the calculation of the Incremental Annual
Compensation.
D is the maximum marginal state and city (if applicable where Executive
resides) tax rate for married individuals filing joint returns for the year of
the calculation of the Incremental Annual Compensation.
The effect of the above formula for Incremental Annual Compensation is gross
up the thirty percent of the Computed Annual Salary for federal, state and
city taxes.
Base Salary for the period August 1, 1994 to December 31, 1994 shall be
defined as $514,958.88.
As referred hereafter in the Agreement as the "CPI Factor" shall be defined as
follows:
CPI Factor = E divided by F, where:
E is the CPI as published during the September immediately preceding the
January 1 with respect to which an increase in Computed Annual Salary is being
computed; and
F is the CPI as published during September, 1989.
If during the Period of Employment the United States Bureau of Labor
Statistics (the "Bureau") (ceases publication of the CPI, the Formula and CPI
Factor shall thereafter by applied using the consumer price index published by
the Bureau (or any successor agency of the federal government) that is most
nearly equivalent to the CPI.
3) Section 10, Retirement Benefits, of the Agreement is hereby amend to read
in its entirety as follows:
As of August 1, 1994 the Company shall pay a one time retirement benefit
of $167,543.16 to the Executive.
The Executive and his spouse and dependents shall be entitled to medical
and health insurance if at the time of retirement he has ten years of service
with the Company and has attained 50 years of age or has fifteen years of
service with the Company and has attained 45 years of age. The coverage shall
be secondary to any government provided or subsequent employer provided health
insurance plans. The Executive and the Company shall be parties to a contract
delineating in detail the medical and health insurance benefit described
above.
Except as amended hereby, all terms of the Agreement shall remain in
full force and effect after the effective date of this Amendment No. 3. After
such effectiveness all references in the Agreement to "this Agreement" shall
refer to the Agreement as amended hereby. All capitalized words not
specifically defined in this Amendment No. 3 shall have the meaning prescribed
in the Agreement.
This Amendment No. 3: a) amends the Agreement dated as of August 15,
1990 as set forth herein, b) shall be amended or waived in whole or in part
only by a written instrument, signed by both parties hereto, c) in case any
provision of this Amendment No. 3 dated as of June 30, 1994 shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be effected or impaired thereby, and
d) shall be governed in all respects, including validity, interpretation and
effect by the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 3 to be
executed by its duly authorized officers and the Executive has signed and
delivered this Amendment No. 3, all as of June 30, 1994, but as actually on
the date set forth below.
XXXXXX & XXXXXX GROUP, INC.
BY: /s/____________________
C. Xxxxxxx Xxxxxxxxx
TITLE: Executive Vice President
DATE: 7/20/94
/s/________________________
Xxxxxxx X. Xxxxxx
DATE: 7/21/94
