EXHIBIT 10.16
AMENDMENT NO. 1 TO
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EMPLOYMENT AGREEMENT
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Amendment No. 1, dated as of January 31, 1997 (this "Amendment"), by and
between CULLIGAN WATER TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxx (the "Executive") to the Employment Agreement
(the "Employment Agreement"), dated as of December 15, 1994, by and between
CULLIGAN INTERNATIONAL COMPANY, a Delaware corporation ("Culligan
International"), and the Executive.
W I T N E S S E T H:
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WHEREAS, Culligan International and the Executive entered into the
Employment Agreement.
WHEREAS, Culligan International transferred the Executive's employment to
the Company pursuant to Section 12(k) of the Employment Agreement and the
Company and the Executive have acknowledged the assignment of the Employment
Agreement to the Company; and
WHEREAS, concurrently with the execution and delivery of a new employment
agreement having a term commencing on February 1, 1998 and ending on January
31, 2000 (the "Extended Term"), the Company and the Executive desire to amend
certain of the terms and provisions of the Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. TERM
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Section 2 of the Employment Agreement is hereby amended to read in its
entirety as follows:
Subject to the provisions of Section 11 hereof, the term of the
Executive's employment (the "Term") shall commence on the date on which the
Executive assumes full time duties hereunder (the "Commencement Date") and
shall end at 12:01 a.m. on February 1, 1998.
2. COMPENSATION AND RELATED MATTERS
(a) Section 4(b) of the Employment Agreement is hereby amended to
read in its entirety as follows:
(b) Base Salary. From the Commencement Date until January 31,
1997, the Company shall pay to the Executive a base salary (the "Salary")
at a rate of $275,000 per annum ($22,916.67 per month), in equal
installments in accordance with the normal payroll practices of the
Company, but not less frequently than monthly. From February 1, 1997 until
the end of the Term, the Salary shall be increased to $350,000 per annum
($29,166.67 per month). The Salary may also be increased from time to time
by amendment to this Agreement and, if so increased, shall not thereafter
be decreased during the Term.
(b) Section 4(c) of the Employment Agreement is hereby amended by
deleting the first sentence thereof and substituting the following in place
thereof:
In addition to the Salary, the Company shall pay to the Executive an annual
incentive bonus (the "Incentive Bonus") of up to $275,000 in respect of
each of the Company's fiscal years ending January 31, 1996 and January 31,
1997 and up to $350,000 in respect of the Company's fiscal year ending
January 31, 1998.
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(c) Section 4(i) of the Employment Agreement is hereby deleted in its
entirety.
3. TERMINATION FOR GOOD REASON
Section 5(d) of the Employment Agreement is hereby amended by deleting
the words "ninety (90) days" appearing in the 27th line thereof and substituting
"two hundred seventy (270) days" in place thereof.
4. COMPENSATION UPON TERMINATION
Section 6(b) of the Employment Agreement is hereby amended by deleting
clause (ii)(B) thereof and substituting the following in place thereof:
(B) as a severance payment (the "Severance Payment"), an amount
equal to the greater of (A) $525,000 or (B) $43,750 multiplied by the sum
of the number of full calendar months remaining in the Term as of the Date
of Termination plus the number of calendar months in the Extended Term.
5. EFFECTIVENESS OF AMENDMENT
This Amendment shall become effective as of February 1, 1997. Any
amount owing to the Executive due to the increase in the Salary shall be paid to
the Executive on the date the Executive is to receive his next installment of
the Salary subsequent to the date on which this Amendment is executed and
delivered.
6. MISCELLANEOUS
(a) Entire Agreement. The parties hereto agree that the Employment
Agreement shall remain in full force and effect, except as amended by this
Amendment. The Employment Agreement, as so amended, contains the entire
understanding and agreement between them, and supersedes all prior
understandings and agreements between the parties respecting the
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employment by the Company of the Executive for all periods prior to
February 1, 1998 (other than the Stock Option Agreements to which the
Executive is a party dated as of January 31, 1995 and January 31, 1997),
and that the provisions of this Amendment may not be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in a
writing signed by the parties hereto.
(b) Waiver. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Amendment to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
(c) Prior Agreements. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in the
Employment Agreement or this Amendment.
(d) Successors; Binding Agreement. This Amendment shall be binding
upon and inure to the benefit of the Company and the Executive and any
successor of the Company.
(e) Choice of Law. The validity, interpretation, construction and
performance of this Amendment shall be governed by the laws of the State of
New York without giving effect to the conflict of laws principles thereof.
(f) Validity. The invalidity or unenforceability of any other
provision or provisions of this Amendment shall not affect the validity or
enforce ability of any provision or provisions of this Amendment, which
shall remain in full force and effect.
(g) Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed to be an
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original but both of which together will constitute one and the same
instrument.
(h) Incorporation by Reference. The incorporation herein of any
terms by reference to another document shall not be affected by the
termination of any agreement set forth in such other document or the
invalidity of any provision thereof.
(i) Representations and Warranties. The Company represents and
warrants that (a) it is fully authorized and empowered to enter into this
Amendment and that the Board has approved the terms of this Amendment, (b)
the execution of this Amendment and the performance of its obligations
under this Amendment will not violate or result in a breach of the terms of
any material agreement to which the Company is a party or by which it is
bound, (c) no approval by any governmental authority or body is required
for it to enter into this Amendment, and (d) this Amendment is valid,
binding and enforceable against the Company, except to the extent affected
or limited by applicable bankruptcy laws or other statutes governing the
rights of creditors generally and any regulations or interpretations
thereof. The Executive represents and warrants that his execution of this
Amendment and his performance of his duties and responsibilities under this
Amendment will not violate or result in a breach of the terms of any
material agreement to which he is a party or by which he is bound.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
CULLIGAN WATER TECHNOLOGIES, INC.
By:_______________________________________
Name:
Title:
__________________________________________
XXXXXXX XXXXX
