AMENDMENT OF ANGELICA CORPORATION EMPLOYMENT AGREEMENT John Olbrych
Exhibit 10.32
AMENDMENT
OF
XXXXXXXX
CORPORATION
Xxxx
Xxxxxxx
This
Amendment of the Xxxxxxxx Corporation Employment Agreement with Xxxx Xxxxxxx
(the “Agreement”) has been entered into this 17th day of December, 2007, by and
between Xxxxxxxx Corporation, a Missouri corporation (the “Company”), and Xxxx
Xxxxxxx, an individual (the “Executive”).
WHEREAS, the Company and the
Executive previously entered into that certain agreement dated as of November
27, 2006, regarding the employment relationship between the Company and the
Executive (the “Original Agreement”); and
WHEREAS, the Company and the
Executive desire to amend the Original Agreement as of the date hereof to
conform to the provisions of the regulations under Section 409A of the Internal
Revenue Code;
NOW THEREFORE, in
consideration of the mutual promises herein contained, the Company and the
Executive hereby amend the Original Agreement as follows:
1. Section
1.1(g) is amended to read in its entirety as follows:
1.1(g)
“Date of Termination”
has the meaning set forth in Section 3.6 of this Agreement. In
all cases, a “Date of Termination” shall only occur upon separation from service
from the Company and all of its affiliates, as defined in Treasury regulations
under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
(generally, separation from the 50% controlled group that includes the
Company).
2. Section
2.3(g) is amended to add the following sentence to the end of said
Section:
Expense
reimbursements described in this Section 2.3(g) will be made no later than the
end of the calendar year following the calendar year in which the expenses are
incurred.
3. Section
2.3(h) is amended to read in its entirety as follows:
2.3(h) [This
section intentionally left blank.]
4. Section
2.3(i) is amended to read in its entirety as follows:
2.3(i)
[This section intentionally left blank.]
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5. Section
2.3(j) is amended to add the following sentence to the end of said
Section:
Expense
reimbursements described in this Section 2.3(j) will be made no later than the
end of the calendar year following the calendar year in which the expenses are
incurred.
6. Section
3.4 is amended to read in its entirety as follows:
3.4 Good Reason. The
Executive may terminate his employment with the Company during the Employment
Period for “Good Reason,” which shall mean the occurrence of one or more of the
following without the consent of the Executive, provided such termination occurs
after the required notice and cure period provided below:
3.4(a) a
material reduction in the Executive’s Annual Base Salary;
3.4(b) a
material reduction in the Executive’s authority, duties or
responsibilities;
3.4(c) a
material reduction in the budget over which the Executive retains
authority;
3.4(d) a
material change in the geographic location at which the Executive must perform
the services under this Agreement;
3.4(e) any
other action or inaction that constitutes a material breach by the Company of
this Agreement.
Any
termination of the Executive’s employment based upon a good faith determination
of “Good Reason” made by the Executive shall be subject to delivery of a notice
of the Good Reason by the Executive to the Company in the manner prescribed in
Section 3.7 within ninety (90) days of the first occurrence of an event that
would constitute Good Reason and subject further to the ability of the Company
to remedy the condition within thirty (30) days of receipt such
notice.
7. Section
3.8 is amended to read in its entirety as follows:
3.8 Date of
Termination. “Date of Termination” means (i) if the
Executive’s employment is terminated by the Company for Cause, the Date of
Termination shall be the date of receipt by the Executive of the Notice of
Termination or any later date specified therein, as the case may be, (ii) if the
Executive’s employment is terminated by reason of death or Disability, the Date
of Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be, (iii) if the Executive’s employment
is
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voluntarily
terminated by the Executive for other than Good Reason, the Date of
Termination shall be a dated specified in the Notice of Termination, with
such specified date being not less than then (10) days after the receipt
by the Company of the Notice of Termination; (iv) if the Executive’s
employment is terminated by the Executive for Good Reason, the date
specified in the Notice of Termination which date shall not be more than
two (2) years after the initial occurrence of the Good Reason event
specified in Section 3.4 or less than thirty (30) days after the receipt
of such notice; or (v) if the Executive’s employment is terminated by the
Company other than for Cause, death or disability, the Date of Termination
shall be the date of receipt by the Executive of the Notice of
Termination.
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8. Sections
4.1(a) is amended to read in its entirety as follows:
4.1(a)
Accrued
Obligations. Within thirty (30) days
after the Date of Termination, the Company shall pay to the Executive the sum of
(1) the Executive’s accrued salary through the Date of Termination, and (2) any
accrued vacation pay; in each case to the extent not previously paid (the
“Accrued Obligations”). In addition, Executive shall be entitled to
the benefits, if any, under any benefit plan, program or arrangement in which
the Executive is a participant, in the time and manner provided under the
applicable plan, program or arrangement.
9. Section
4.1(b) is amended to read in its entirety as follows:
4.1(b)
Annual Base
Salary. The Executive shall be entitled to receive an amount
equal to the Annual Base Salary, payable as and when described
below. This amount (the “Separation Payment”) will be paid over a one
(1) year time period in the same equal monthly, semi monthly or bi-weekly
installments at which the Executive had been paid at the time employment
terminated.
10. Section
4.1(c) is amended to read in its entirety as follows:
4.1(c)
Medical and
Health Benefit Continuation. With respect to the twelve (12) month
period immediately following the Date of Termination, the Company shall
reimburse the Executive, on a monthly basis, for that portion of the cost
incurred by the Executive to continue the Executive’s then existing coverage
under the Company’s group health insurance plan after the Date of Termination
equal to the portion paid for by the Company for such coverage immediately prior
to the Date of Termination, provided the Executive timely elects COBRA
continuation coverage; provided, however,
that if the Executive becomes employed with another employer and is eligible to
receive medical or health benefits under another employer-provided plan,
program, practice or policy then the medical or health benefits described herein
shall be secondary to those
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provided
under such other plan during such applicable period of eligibility.
11. Section
4.1(d) is amended to read in its entirety as follows:
4.1(d)
Other
Benefits. To the extent not previously paid or provided, the
Company shall timely pay or provide to Executive and/or Executive’s family any
other amounts or benefits required to be paid or provided for which the
Executive and/or the Executive’s family is eligible to receive pursuant to this
Agreement and under any plan, program or policy or practice or contract or
agreement of the Company as those provided generally to other peer executives
and their families (“Other Benefits”), in the time and manner provided under the
applicable plan, program or policy or practice contract or arrangement,
provided, however that to the extent necessary to avoid the tax consequences of
Section 409A of the Code, any such payments may be delayed until the first
business day following the six (6) month anniversary of the Date of
Termination.
12. Section
4.6 is amended to add the following sentence to the end of said
Section:
Any such
payment shall be made not later than the end of the calendar year following the
calendar year in which the Executive incurred such expense.
13. Section
4.7 is amended to read in its entirety as follows:
4.7 Resolution of
Disputes. If there shall be any dispute between the Company
and the Executive (i) as to whether any termination of the Executive’s
employment was for Cause, or (ii) as to whether any termination of the
Executive’s employment for Good Reason was made in good faith, then, unless and
until there is a final, non-appealable judgment by a court of competent
jurisdiction declaring that such termination was for Cause or that the
determination by the Executive of the existence of Good Reason was not made in
good faith, the Company shall pay all amounts, and provide all benefits, to the
Executive and/or the Executive’s family or other beneficiaries, as the case may
be, that the Company would be required to pay or provide pursuant to Section 4.1
as though such termination was without Cause or for Good Reason, as the case may
be; provided, however, that the Company shall not be required to pay any
disputed amounts pursuant to this Section 4.7 except upon receipt, within sixty
(60) days of the date such dispute arises, of an undertaking by or on behalf of
the Executive to repay all such amounts to which the Executive is ultimately
adjudged by such court not to be entitled.
14. A
new Section 4.8 is added to the Agreement as follows:
4.8 Specified Employee Six Month
Deferral. Notwithstanding anything to the contrary in this
Section 4, if the Executive is a “Specified
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Employee”
on the Date of Termination, the Executive may not receive a payment of
“nonqualified deferred compensation” for which the “payment event” is
“separation from service,” as defined in Code Section 409A and the
regulations thereunder, until at least six (6) months after a Date of
Termination. Any payment of nonqualified deferred compensation
otherwise due in such six (6) month period shall be suspended and become
payable at the end of such six (6) month period.
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A
“Specified Employee” means a specified employee as defined in Treas. Reg.
§1.409A-1(i) (generally, officers earning more than $140,000 per year, as
indexed for inflation, who are among the fifty (50) highest paid
employees).
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IN WITNESS WHEREOF, the
Executive and, the Company, pursuant to the authorization from its Board, have
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
“Executive”
/s/ Xxxx X.
Xxxxxxx
XXXX
XXXXXXX
“Company”
XXXXXXXX
CORPORATION
By /s/ Xxxxxxx X.
X’Xxxx
Name:
Xxxxxxx X.
X’Xxxx
Title:
CEO
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