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EXHIBIT 10.2
AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDMENT AGREEMENT dated as of January 2, 1997 between Xxxx
Group, Inc., a Delaware corporation (the "Company"), and D. Xxxxxx Xxxxxxxxxx
(the "Employee").
WHEREAS, the Company and the Employee are parties to an
Amended and Restated Employment Agreement dated as of March 15, 1996; and
WHEREAS, the Company and the Employee desire to amend the
Amended and Restated Employment Agreement as follows:
1. Amendment of Paragraph 2(b)(3). Paragraph 2(b)(3) of the
Amended and Restated Employment Agreement is hereby amended to read in its
entirety as follows:
"(3) Without cause upon notice to the Employee provided that,
for a period of two years after such termination, the Company shall (i) pay to
Employee an amount each month equal to the Salary which Employee is being paid
each month at the date of the notice of termination and (ii) provide for
Employee the same fringe benefits, consisting of medical, dental, life and
disability insurance, which were provided to Employee at the date of the notice
of termination. If the Company may elect, in accordance with paragraph 2(b)(1)
hereof, to terminate this Agreement then such election shall be deemed to have
been made
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under paragraph 2(b)(1) and not in accordance with this paragraph 2(b)(3). If
the Company elects to terminate the obligations of the Company in accordance
with this paragraph 2(b)(3) within 180 days after the occurrence of the events
described in paragraph 2(d)(i), (ii) or (iii), then, in lieu of paying any
amounts to the Employee in accordance with this paragraph 2(b)(3) except
providing the fringe benefits, the Company shall pay to the Employee the amounts
provided in paragraph 2(d) when required by paragraph 2(d), terminate the
obligations under the promissory notes and pay to the Employee the amount,
including the gross up, all as described in paragraph 2(d). The Company shall be
deemed to have elected to terminate this Agreement in accordance with this
paragraph 2(b)(3) if the title or duties of the Employee are, without the
written approval of the Employee, changed from that of Chief Executive Officer
or the Employee is, without the written approval of the Employee, required to
reside other than in the area of Lancaster, Pennsylvania in order to perform his
duties for the Company; provided that the Employee, within 30 days after the
occurrence of such an event, shall notify the Company that the Company is so
deemed to have elected to terminate this Agreement. The Employee shall have no
further obligation under this Agreement from and after such termination except
as provided in paragraphs 6, 7, 7A and 8 hereof."
2. Amendment of Paragraph 2(d). Paragraph 2(d) is hereby
amended to read in its entirety as follows:
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"(d) Within 180 days after the occurrence of any of the
following events, the Employee may elect to terminate the obligations of the
Employee under this Agreement, except as hereinafter provided, and the Company
shall pay to the Employee, upon such termination, by delivery of a certified or
bank check, an amount determined by multiplying by 24 the Salary then being paid
to the Employee in accordance with paragraph 3(a), provide to Employee for 24
months the fringe benefits described in paragraph 2(b)(3), terminate the
obligations of the Employee then existing under promissory notes, dated
September 3, 1986 and June 11, 1991, delivered by the Employee to the Company
and pay to the Employee the amount of federal and state taxes, grossed up,
resulting from the termination of the obligations under the promissory notes:
(i) 50% or more of the shares of the Company's Common
Stock are acquired, directly or indirectly, by an individual,
partnership, corporation, trust or unincorporated organization
(collectively "Person") or by Persons acting with a common design,
either formally or informally;
(ii) The Company merges with or into another Person
and is not the survivor of such merger or because of such merger the
Company becomes a wholly-owned subsidiary or the Company sells all of
its fixed assets to another Person or Persons; or
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(iii) The majority of the Board of Directors of the
Company consists of directors who were not selected by or nominated
with the approval of a majority of the directors of the Company in
office on the date hereof (the "Present Directors") or who were not
selected by or nominated with the approval of a majority of directors
selected or nominated by a majority of the Present Directors.
The Employee shall have no further obligation under this Employment Agreement
from and after such termination except as provided in paragraphs 6, 7, 7A and 8
hereof."
3. New Paragraph 7A. A new paragraph to be entitled, "7A.
Noncompetition" is hereby added to the Amended and Restated Employment Agreement
and shall read in its entirety as follows:
"7A. Noncompetition. If the Employee shall terminate this
Agreement in accordance with paragraphs 2(c) or 2(d) or if the Company shall
terminate this Agreement in accordance with paragraph 2(b)(3) and the Company
shall have performed, and continues to perform, all of its obligations under
this Agreement, then for a period of 2 years after the date of termination the
Employee shall not (i) engage in any business which competes directly or
indirectly with the business conducted by the Company at the date of such
termination in any area where
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the Company is conducting the business on such date and (ii) shall not induce
any employee, customer or lessee or lessor to terminate his, her or its
relationship with the Company."
4. Amendment of Paragraph 8. Paragraph 8 is hereby amended to
read in its entirety as follows:
"8. Injunctive Relief. If there is a breach or threatened
breach of the provisions of paragraphs 6, 7 or 7A of this Agreement, the Company
shall be entitled to an injunction restraining the Employee from such breach.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies for such breach or threatened breach."
5. Ratification. Except as hereby amended, the Amended and
Restated Agreement is hereby ratified, confirmed and approved in all respects.
IN WITNESS WHEREOF, the Company and the Employee have executed
this Amendment to the Amended and Restated Employment Agreement as of the date
first above written.
XXXX GROUP, INC.
By: /s/ Xxxxxxx Xxxxx
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/s/ D. Xxxxxx Xxxxxxxxxx
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D. Xxxxxx Xxxxxxxxxx
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