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EXHIBIT 10.9.4
FOURTH AMENDMENT TO
EMPLOYMENT AGREEMENT
This Fourth Amendment to Employment Agreement (the "Fourth Amendment")
is made and entered into as of January 1, 2000, by and between XXXXXXX-XXXXXX,
INC., a Delaware corporation with its principal office located in Beverly Hills,
California (the "Company"), and Xxxxxxx Xxxxxx, an individual ("Employee").
RECITALS
WHEREAS, COMPANY and Employee have entered into that certain Employment
Agreement dated as of January 1, 1997, and amended May 19, 1997, January 1,
1998, and January 1, 1999 (the "Agreement"), providing for the employment of
Employee by Company pursuant to the terms of such Agreement; and
WHEREAS, Company and Employee have agreed that the terms of the
Employment Agreement should be modified to change the term, base salary and add
change in control stipulation.
AMENDMENT TO AGREEMENT
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, the parties hereby amend the Agreement,
effective as of January 1, 2000 as follows:
1. The Term of the Agreement is extended until December 31, 2001.
Therefore, Section 3 of the Agreement is amended such that the
termination date of "December 31, 2000" is deleted and the
termination date of "December 31, 2001" is inserted in lieu
thereof.
2. Section 5(a) is deleted in its entirety and the following is
inserted in lieu thereof:
5(a) Employee shall be paid a base salary at the rate of
$25,000.00 monthly ($300,000.00 annualized) for the period of
January 1, 2000 to December 31, 2001, payable on such basis is
the normal payment pattern of the company, not to be less
frequently than
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monthly, subject to such deductions and withholdings as Company
may from time to time be required to make pursuant to applicable
law, governmental regulation or order.
3. Section 5(e) is added:
5(e) In the event the Employment Agreement is
terminated due to change in control, the Employee shall, in
consideration of his execution of a General Release, be entitled
to payment from the Company equal to two (2) times the
Employee's annual compensation. The annual compensation would be
the arithmetic average of the most recent three (3) year period
and would include salary and bonus as reported in the Proxy
Statement, (the Severance Payment). Such severance payment shall
be paid to employee following his execution and delivery to
Company of a General Release.
"Change in control" shall mean the first to occur of any of the
following events:
(a) Any "person" (as that term is used Section 13 and 14(d)(2)
of the Securities Exchange Act of 1934 ("Exchange Act") becomes
the beneficial owner (as that term is used in Section 13(d) of
the Exchange Act), directly or indirectly, of 50% or more of the
Company's capital stock entitled to vote in the election of
directors;
(b) During any period of not more than two consecutive years,
not including any period prior to the adoption of this
Amendment, individuals who at the beginning of such period
constitute the board of directors of the Company, and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a
transaction described in clause (a), (c), (d) or (e) of this
section) whose election by the board of directors or nomination
for election by the Company's stockholders was approved by a
vote of at least three-fourths (3/4ths) of the directors then
still in office who either were directors at the beginning of
the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute at
least a majority thereof;
(c) The shareholders of the Company approve any consolidation or
merger of the Company, other than a consolidation or merger of
the Company in which the holders of the common stock of the
Company immediately prior to the consolidation or merger hold
more than 50%
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of the common stock of the surviving corporation immediately
after the consolidation or merger;
(d) The shareholders of the Company approve any plan or proposal
for the liquidation or dissolution of the Company; or
(e) The shareholders of the Company approve the sale or transfer
of all or substantially all of the assets of the Company to
parties that are not within a "controlled group of corporations"
(as defined in Code Section 1563) in which the Company is a
member.
Subject to the foregoing, the Employment Agreement remains in full force and
effect, and Company and Employee hereby ratify and affirm the Employment
Agreement in each and every respect.
IN WITNESS WHEREOF, the undersigned have executed this Fourth Amendment
as of the date first above written.
"COMPANY"
XXXXXXX-XXXXXX INC.
A DELAWARE CORPORATION
By:
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Xxxxxxx X. XxXxxxxx
Its Chief Executive Officer
"EMPLOYEE"
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Xxxxxxx Xxxxxx