AMENDMENT OF ANGELICA CORPORATION EMPLOYMENT AGREEMENT Edward M. Davis
Exhibit 10.35
AMENDMENT
OF
XXXXXXXX
CORPORATION
Xxxxxx
X. Xxxxx
This
Amendment of the Xxxxxxxx Corporation Employment Agreement with Xxxxxx X. Xxxxx
(the “Agreement”) has been entered into this 17th day of December, 2007, by and
between Xxxxxxxx Corporation, a Missouri corporation (the “Company”), and Xxxxxx
X. Xxxxx, an individual (the “Employee”).
WHEREAS, the Company and the
Employee previously entered into that certain agreement dated as of July 1,
2006, regarding the employment relationship between the Company and the Employee
(the “Original Agreement”); and
WHEREAS, the Company and the
Employee 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
Employee hereby amend the Original Agreement as follows:
1. Section
1.1(i) is amended to read in its entirety as follows:
1.1(i)
“Date of Termination”
has the meaning set forth in Section 3.8 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
2.4(f) is amended to add the following sentence to the end of said
Section:
Expense
reimbursements described in this Section 2.4(f) will be made no later than the
end of the calendar year following the calendar year in which the expenses are
incurred.
3. Section
3.4 is amended to read in its entirety as follows:
3.4 Good Reason. The
Employee 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 Employee, provided such termination occurs
after the required notice and cure period provided below:
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3.4(a) a
material reduction in the Employee’s Annual Base Salary;
3.4(b) a
material reduction in the Employee’s authority, duties or
responsibilities;
3.4(c) a
material reduction in the budget over which the Employee retains
authority;
3.4(d) a
material change in the geographic location at which the Employee 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 Employee’s employment based upon a good faith determination
of “Good Reason” made by the Employee shall be subject to delivery of a notice
of the Good Reason by the Employee 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 of such
notice.
4. 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 Employee the sum of (i) the Employee’s Annual Base Salary through the
Date of Termination, and (ii) any accrued vacation pay; in each case to the
extent not previously paid (the “Accrued Obligations”). In addition,
Employee shall be entitled to the benefits, if any, under any benefit plan,
program or arrangement in which the Employee is a participant, in the time and
manner provided under the applicable plan, program or arrangement.
5. Section
4.1(b) is amended to read in its entirety as follows:
4.1(b)
Annual Base Salary
Continuation. For a period of twelve (12) months beginning in
the month immediately subsequent to the month in which the Date of Termination
occurs, the Company shall pay to Employee, on a bi-weekly basis consistent with
its then-existing payroll practices, an amount equal to one/twenty-sixth
(1/26th) of the
Employee’s then-current Annual Base Salary; provided, however, that during
months seven (7) through twelve (12) of such period, the amount of such payments
shall be reduced by the amounts, if any, earned by the Employee during such
months as a result of self-employment and/or employment with another
employer. As a condition of payment during months seven (7) through
twelve (12), the Employee agrees to provide the Company
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with
verification, reasonably acceptable to Company, substantiating the amounts of
any such earnings or the Employee’s lack of other employment as the case may
be.
6. Section
4.2 is amended to read in its entirety as follows:
4.2 Benefits Upon Termination without
Cause or for Good Reason in Connection with a Change in
Control. If (a) a Change in Control (as defined in Section
1.1(f)) occurs during the Employment Period and within two (2) years after the
Change in Control Date (as defined in Section 1.1(g)) (i) the Company shall
terminate the Employee’s employment without Cause, or (ii) the Employee shall
terminate employment with the Company for Good Reason, or, alternatively, (b) if
one of the above-described terminations of employment occurs within the
six-month period prior to the earlier of (i) a change of control that qualified
under Code Section 409A (a “409A Change in Control”) or (ii) the execution of a
definitive agreement or contract that eventually results in a 409A Change in
Control, then the Employee shall become entitled upon the date of the 409A
Change in Control to receive the payment of the benefits as provided below as of
either (y) the Date of Termination, in the case where the sequence of the
requisite events is as set forth in subsection (a) above or (z) the date of the
409A Change in Control, in the case where the sequence of the requisite events
occurred as set forth in subsection (b) above (the relevant date for purposes of
entitlement to the benefits as set forth in this Section 4.2 is hereinafter
referred to as the “Entitlement Date”).
For
purposes of this Agreement, a “409A Change in Control” shall
mean: (i) the acquisition by one person, or more than one person
acting as a group, of ownership of stock of the Company that, together with
stock held by such person or group, constitutes more than 50% of the total fair
market value or total voting power of the stock of the Company; (ii) the
acquisition by one person, or more than one person acting as a group, of
ownership of stock of the Company, that together with stock of the Company
acquired during the twelve-month period ending on the date of the most recent
acquisition by such person or group, constitutes 30% or more of the total voting
power of the stock of the Company; (iii) a majority of the members of the
Company’s board of directors is replaced during any twelve-month period by
directors whose appointment or election is not endorsed by a majority of the
members of the Company’s board of directors before the date of the appointment
or election; (iv) one person, or more than one person acting as a group,
acquires (or has acquired during the twelve-month period ending on the date of
the most recent acquisition by such person or group) assets from the Company
that have a total gross fair market value (determined without regard to any
liabilities associated with such assets) equal to or more than 40% of the total
gross fair market value of all of the assets of the Company immediately before
such acquisition or acquisitions. Persons will not be considered to
be acting as a group solely because they purchase or own stock of the same
corporation at the same time, or as a result of the same public
offering.
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However, persons
will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or
acquisition of stock, or similar business transaction with the
Company. This definition of 409A Change in Control shall be
interpreted in accordance with, and in a manner that will bring the
definition into compliance with, the regulations under Code Section
409A.
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7. Section
4.7 is amended to read in its entirety as follows:
4.7 Full Settlement. The
parties agree that the Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder are intended
to be in full settlement of all claims that the Employee may have against the
Company with respect to the termination of the Employee’s employment with the
Company and the Employee shall be required to execute and deliver an agreement
to this effect prior to receipt of any payments under this
Agreement. If such agreement is not signed and delivered to the
Company within sixty (60) days of Employee’s Date of Termination, the Company’s
obligation to make the payments provided for in this Agreement shall
terminate. The payments to be made by the Company or any other
obligation that the Company is required to perform pursuant to this Agreement
shall not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Employee or
others. In no event shall the Employee be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Employee under any of the provisions of this Agreement and such amounts shall
not be reduced whether or not the Employee obtains other
employment. To the extent the Employee prevails in any contest with
respect to the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Employee regarding the amount of any payment pursuant to
this Agreement), the Company agrees to pay promptly, to the full extent
permitted by law, all legal fees and expenses which the Employee may reasonably
incur as a result of any such contest, plus in each case interest on any delayed
payment at the applicable Federal rate provided for in Code Section
7872(f)(2)(A). Any such payment shall be made not later than the end
of the calendar year following the calendar year in which the Employee incurred
such expense.
8. Section
4.8 is amended to read in its entirety as follows:
4.8 Resolution of
Disputes. If there shall be any dispute between the Company
and the Employee (i) as to whether any termination of the Employee’s employment
was for Cause, or (ii) as to whether any termination of the Employee’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
Employee of the existence of Good Reason was not made in
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good faith, the
Company shall pay all amounts, and provide all benefits, to the Employee
and/or the Employee’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 or 4.2 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 4.8
except upon receipt, within sixty (60) days of the date such dispute
arises, of an undertaking by or on behalf of the Employee to repay all
such amounts to which the Employee is ultimately adjudged by such court
not to be entitled.
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9. A
new Section 4.9 is added to the Agreement as follows:
4.9 Specified Employee Six Month
Deferral. Notwithstanding anything to the contrary in this
Section 4, if the Employee is a “Specified Employee” on the Date of Termination,
the Employee 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.
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
Employee 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.
“Employee”
/s/ Xxxxxx X.
Xxxxx
XXXXXX X.
XXXXX
“Company”
XXXXXXXX
CORPORATION
By /s/ Xxxxxxx X.
X’Xxxx
Name:
Xxxxxxx X.
X’Xxxx
Title: CEO
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