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EXHIBIT 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT, dated as of June 22, 2000,
is between XXXXX XXXXXXXX INTERNATIONAL, INC., a Delaware corporation, XXXXX
XXXXXXXX CORPORATION, a Delaware corporation, as the case may be (the
"Company"), and the individual signatory hereto (the "Executive").
WHEREAS, the Executive has entered into an employment agreement with
the Company, as identified on Schedule "A" hereto ("Employment Agreement"); and
WHEREAS, Xxxxx Xxxxxxxx Corporation is party to an Agreement and Plan
of Merger dated as of June 22, 2000, (the "Merger Agreement") with HB Merger LLC
pursuant to which the HB Merger LLC will be merged with and into Xxxxx Xxxxxxxx
Corporation (the "Merger"); and
WHEREAS, the Company and the Executive desire to amend the terms of the
Employment Agreement in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Amendment.
A. Effective as of the date of the consummation of the Merger (the "Effective
Date"), Section 4 is hereby renumbered Section 4(a) and a new Section 4(b) is
added to read as follows:
(b) Post-Merger Options. As soon as practicable following the
consummation of the transactions contemplated by that certain agreement and plan
of merger dated as of June 22, 2000 between the Company and HB Merger LLC (the
"Merger"), Executive shall be granted stock options in respect of the capital
stock of the corporation surviving the Merger in accordance with the terms and
conditions set forth on Schedule A hereto.
B. Effective as of the date of the consummation of the Merger, Section 7(e) of
the Employment Agreement is hereby replaced in its entirety with the following:
"(e) Good Reason Prior to a Change in Control. For purposes of this Agreement,
prior to a Change in Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities, authorities or duties,
all as contemplated by Section 2 hereof, (including by reason of a substantial
reduction in the
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size of the Company or other substantial change in the character or scope of the
Company's operations), but specifically excluding any reduction in such
responsibilities, authorities or duties occurring by reason of
(x) a termination for Cause or Disability or
(y) the assignment of Executive to a position which is
(1) a management position with significant responsibilities,
authorities and duties and
(2) either is
(A) appropriate for Executive based on his skills,
training and experience or
(B) a temporary assignment made in order to fulfill a
business need of the Company (a "Temporary
Position"), immediately following which Executive is
returned to his original position or another
position with the Company (the "Restored Position")
which (when compared to such original position)
would have met the requirements of paragraphs (1)
and (2)(A) of this subclause (y), with it being
understood that, for this purpose, no assignment
shall be deemed temporary if it has a duration of
more than 12 months;
(ii) the Company fails to pay Executive any amounts otherwise vested and due
hereunder or under any plan or policy of the Company;
(iii) a reduction in Executive's Base Salary except in the event of an across
the board salary reduction within the corporate staff group or the business
division in which Executive is employed, whichever is applicable;
(iv) a reduction in Executive's aggregate level of benefits under the Company's
pension, life insurance, medical, health and accident, disability, deferred
compensation or savings or similar plans, except in the case of an across the
board reduction in such benefits within the corporate staff group or the
business division in which Executive is employed, whichever is applicable;
(v) the elimination of an annual incentive compensation plan or a material
reduction in such plan not applicable to other executives of the Company; or
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(vi) the Executive's office is relocated outside of a 00-xxxx xxxxxx xx Xxxxxx,
Xxxxxxxx without his written consent except in the event of a good faith
developmental assignment by the Company or in the event of an assignment to a
Temporary Position;
If Executive provides the Company a Notice of Termination, as defined in Section
13(f), in connection with an event descried in clauses (i) through (vi) of this
section 7(e), the Company shall have ten (10) business days from the receipt of
such notice to effect a cure of the event described therein, and upon the cure
thereof by the Company to Executive's reasonable satisfaction, such event shall
no longer constitute Good Reason for purposes of this Agreement."
B. Effective as of the date of the consummation of the Merger, Section 8(e) of
the Employment Agreement is hereby replaced in its entirety with the following:
"(e) Good Reason Following a Change in Control. For purposes of this Agreement,
following a Change in Control, "Good Reason" shall mean:
(i) a material reduction in Executive's responsibilities, authorities or duties,
all as contemplated by Section 2 hereof, (including by reason of a substantial
reduction in the size of the Company or other substantial change in the
character or scope of the Company's operations); provided, however, that such
reduction by reason of a termination for Cause or Disability shall not
constitute Good Reason;
(ii) Executive no longer serves in the position described in Section 2. other
than by reason of a promotion or a termination for Cause or Disability;
(iii) the Company fails to pay Executive any amounts otherwise vested and due
hereunder or under any plan or policy of the Company;
(iv) a reduction in Executive's Base Salary in effect immediately prior to the
Change in Control or as the same may be increased from time to time;
(v) the elimination of an annual incentive compensation plan or a material
reduction in such plan not applicable to other executives of the Company;
(vi) the failure of the Company, to continue to provide Executive with benefits
and perquisites which are substantially similar in the aggregate to those
enjoyed by Executive under the Company's pension, life insurance, medical,
health and accident, disability, deferred compensation or savings or similar
plans and fringe benefit programs (including vacation) in which Executive was
participating immediately prior to the Change in Control; or the failure by the
Company to continue to provide Executive with directors' or officers' insurance,
as applicable, at the level maintained immediately prior to the Change in
Control;
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(vii) the Executive's office is relocated outside of a 00-xxxx xxxxxx xx Xxxxxx,
Xxxxxxxx without his written consent;
(viii) the failure of the Company to obtain an agreement from any successor to
assume and agree to perform this Agreement, as contemplated in Section 13(e)
hereof; or
(ix) any purported termination of Executive's employment by the Company which is
not effected pursuant to a Notice of Termination satisfying the requirements of
Section 13(f) and, if applicable, following the written demand described in
Section 8(c) and the relevant cure period.
If Executive provides a Notice of Termination, as defined in Section
13(f), in connection with an event described in clauses (i) through (vii) of
this Section 8(e), to the Company, the Company shall have ten (10) business days
from the date of receipt of such notice to effect a cure of the event described
therein, and upon cure thereof by the Company to Executive's reasonable
satisfaction, such event shall no longer constitute Good Reason for purposes of
this Agreement.
C. Effective as of the date of the consummation of the Merger, Section 8(g) is
hereby replaced in its entirety with the following:
"Change in Control. For purposes of this Agreement, the phrase "Change in
Control" shall mean the following and shall be deemed to have occurred if any of
the following events shall have occurred:
any person (as defined in Section 3(a)(9) of the Securities Exchange Act of
1934, as amended from time to time, (the "Exchange Act") and as used in Sections
13(d) and 14(d) thereof, including a group as defined in Section 13(d) thereof,
(a "Person") (other than the Company, Xxxxx Muse Xxxx & Xxxxx Incorporated or
any of its affiliates ("Xxxxx Muse"), Bear Xxxxxxx Merchant Fund Corp. or any of
its affiliates ("Bear Xxxxxxx"), any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, or any company owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of the common stock of the Company) becomes
the Beneficial Owner (except that a Person shall be deemed to be the Beneficial
Owner of all shares that any such Person has the right to acquire pursuant to
any agreement or arrangement or upon exercise of conversion rights, warrants, or
options or otherwise, without regard to the sixty day period referred to in Rule
13d-3 under the Exchange Act, directly or indirectly, of securities of the
Company or any Significant Subsidiary (as defined below), representing 30
percent or more of the combined voting power of the Company's or such
subsidiary's then outstanding securities; provided, however, that such event
shall not constitute a Change in Control unless or until the percentage of such
securities owned beneficially, directly or indirectly, by such Person is equal
to or more than all such securities owned beneficially, directly or indirectly,
by Xxxxx Muse and Bear Xxxxxxx, in the aggregate; during any period of two
consecutive years (not including any period prior to the date hereof),
individuals who at
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the beginning of such period constitute the Board, and any new director (other
than a director designated by Xxxxx Muse or Bear Xxxxxxx or any person who has
entered into an agreement with the Company to effect a transaction described in
clause (i), (iii), or (iv) of this paragraph) whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such two-year period or whose election or
nomination for election was previously so approved but excluding for this
purpose any such new director whose initial assumption of office occurs as a
result of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf
of an individual, corporation, partnership, group, associate or other entity or
Person other than the Board, cease for any reason to constitute at least a
majority of the Board; provided, however, that such event shall not constitute a
Change in Control unless or until the percentage of voting securities of the
Company owned beneficially, directly or indirectly, by Xxxxx Muse and Bear
Xxxxxxx, in the aggregate, is less than 50 percent of all such outstanding
securities;
the consummation of a merger or consolidation of the Company or any subsidiary
owning directly or indirectly all or substantially all of the consolidated
assets of the Company (a "Significant Subsidiary") with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company or a Significant Subsidiary outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving or resulting entity) more than 50
percent of the combined voting power of the surviving or resulting entity
outstanding immediately after such merger or consolidation;
the stockholders of the Company or any affiliate approve a plan or agreement for
the sale or disposition of all or substantially all of the consolidated assets
of the Company (other than such a sale or disposition immediately after which
such assets will be owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of the common
stock of the Company immediately prior to such sale or disposition) in which
case the Board shall determine the effective date of the Change in Control
resulting therefrom; or
(v) any other event occurs which the Board determines, in its discretion, would
materially alter the structure of the Company or its ownership."
D. Effective as of the date of the consummation of the Merger, a new Section 14
is hereby added to the Employment Agreement:
"Notwithstanding the foregoing, for all purposes of this Agreement, the parties
agree that the consummation of the Merger shall not constitute a "Change in
Control" of the Company for purposes of this Agreement; provided, however, that
if Executive's employment hereunder is terminated during the 18 month period
immediately following the Effective Date of the Merger by the Company without
Cause (as defined in Section
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7(c)(other than for reason of death or Disability) or by Executive for Good
Reason (as defined in Section 7(e)), Executive shall be entitled to receive the
benefits set forth in Section 8(d). Executive shall also be entitled to receive
the benefits set forth in Section 8(d) if (i) during the 18 month period
immediately following the Effective Date, Executive is assigned to position
intended to be a Temporary Position but is not timely given a Restored Position
as required under Section 7(e)(i), and (ii) terminates employment prior to the
end of the term hereof and during the 60 day period immediately following the
first anniversary of the assignment to the Temporary Position (or, if earlier,
the date on which the Company advises Executive in writing that it is
terminating his employment without Cause and other than for Disability or is
assigning Executive to a permanent position that does not qualify as a Restored
Position). Executive also agrees that he will not have "Good Reason" within the
meaning of Section 7(e) of this Agreement to terminate his employment with the
Company as a result of the completion of the Merger and the transactions
contemplated thereby and any acts or omissions ancillary thereto. For
clarification and avoidance of doubt, the Executive agrees that he will not have
Good Reason to terminate his employment with the Company due to the fact that
the Company will not be a public company following the completion of the Merger.
2. Conditions to Effectiveness. This Amendment shall be contingent upon the
consummation of the Merger and the completion of mutually satisfactory
arrangements pertaining to Executive's equity rollover (as reflected on his
Equity Rollover Election Form) in connection with the Merger.
3. Confirmation. Except as amended by this Amendment, the Employment Agreement
shall remain in full force and effect.
4. Future Reference. All future references to the Employment Agreement shall
mean such agreement as amended hereby.
5. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument. Each amendment to each Employment
Agreement of the Executive party hereto shall be effective upon execution of
this Amendment by the Company and such Executive.
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SIGNATURE PAGE TO
AMENDMENT TO EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Employment Agreement on the date and year first above written.
/s/ Xxxxxx X. Xxxxx, Xx.
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Executive
XXXXX XXXXXXXX INTERNATIONAL, INC./
XXXXX XXXXXXXX CORPORATION
/s/ X. X. Xxxxx
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X. X. Xxxxx
Chairman, Chief Executive Officer and President
ATTEST:
/s/ Xxxx X. Xxxxxx, III
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Name: Xxxx X. Xxxxxx, III
Title: Senior Vice President & General Counsel
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