AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT (this "AMENDMENT"), effective as of
February 1, 1998, is entered into by and between Avatex Corporation, a Delaware
corporation formerly known as FoxMeyer Health Corporation (the "COMPANY"), and
Xxxxxx X. Xxxxxxx ("EMPLOYEE").
The Company and Employee hereby agree that this Amendment amends the
Employment Agreement dated and effective as of November 7, 1996 by and between
the Company and Employee (the "AGREEMENT"), as follows:
1. All references in the Agreement to FoxMeyer Health Corporation shall
be deemed to be references to Avatex Corporation.
2. Section 1 of the Agreement is hereby amended by changing the date
specified therein to January 31, 2000.
3. Section 3(a) of the Agreement is hereby amended by changing the
minimum monthly base salary specified in the first sentence therein to
$25,000.00.
4. A new Section 3(f) is hereby added to the Agreement as follows:
f. Employee shall be entitled to all of the rights and benefits
set forth in the Indemnification Agreement dated as of October 23,
1997 between the Company and Employee.
5. Section 4(d) of the Agreement is hereby deleted up to the phrase
commencing with "Without in any way limiting the generality 1/4", and replaced
with the following:
d. The Company shall have the right to terminate Employee's
employment at any time without Cause ("TERMINATION WITHOUT CAUSE").
In the event that (1) upon expiration of the Agreement, the Company
has not renewed Employee's employment on terms at least as favorable
as the terms and conditions of this Agreement, or (2) a Termination
Without Cause of Employee's employment occurs, and provided that
Employee complies with SECTION 5 hereof, then:
(i) Employee shall be entitled to receive a one-time lump sum
payment equal to the full amount of any Monthly Base Salary and
cash bonus awards that otherwise would have been earned by him
for a twenty-four (24) month period. The computation of the cash
bonus awards will be determined in the same manner that they
would have been computed by the Company prior to Employee's
termination, but in no event will that amount be less than the
highest amount paid in any one of the prior two (2) years;
provided, however, that the Initial Bonus paid to Employee, and
the value of all property distributed to Employee pursuant to the
Assignment, shall not be considered in the foregoing computation
of the cash bonus award;
(ii) All rights of Employee under any benefit plan or
arrangement that have not vested shall be deemed to have vested
as of the date of such termination, and the Company shall cause
all benefits vested and deemed to be vested thereunder to be paid
to Employee pursuant thereto;
(iii) All rights of Employee under the Company's 1993 Stock
Option and Performance Award Plan, as amended, and any other
stock option plan or arrangement that have not yet vested
thereunder shall be deemed to have vested as of the date of such
termination and Employee shall be entitled to exercise any such
options during the remaining term specified in the option grant
and pursuant to the other terms thereof; and
(iv) for the period covered by Section 4(d)(i), medical and
dental benefits coverage, less any amount the Employee is
required to pay to receive such medical and dental coverage had
termination of employment not occurred.
6. Section 14(a) of the Agreement is hereby deleted in its entirety and
replaced with the following:
a. if to the Company:
Avatex Corporation
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
7. A new Section 19 is hereby added to the Agreement as follows:
19. TAX ADJUSTMENT PAYMENTS. If all or any portion of the
amount payable to Employee under this Agreement (together with all
other payments of cash or property, whether pursuant to this Agreement
or otherwise, including without limitation the issuance of options or
option shares or the granting of, exercise or termination of options
therefor) constitutes "excess parachute payments" within the meaning
of Section 280G of the Internal Revenue Code of 1986, as amended, (the
"CODE") that are subject to the excise tax imposed by Section 4999 of
the Code (or any similar tax or assessment), the amounts payable
hereunder shall be increased to the extent necessary to place Employee
in the same after-tax position as he would have been in had no such
tax assessment been imposed on any such payment paid or payable to
Employee under this Agreement or any other payment Employee may
receive in connection therewith. The determination of the amount of
any such tax or assessment and the incremental payment required hereby
in connection therewith shall be made by an accounting firm employed
by Employee within thirty (30) calendar days after such payment, and
the incremental payment shall be made within thirty (30) calendar days
after such determination has been made. If, after the date upon which
the payment required hereby has been made, it is determinated
(pursuant to final regulations or published rulings of the Internal
Revenue Service, final judgment of a court of competent jurisdiction,
Internal Revenue Service audit assessment or otherwise) that the
amount of excise or other similar tax or assessment payable by
Employee is greater than the amount initially so determined, the
Company shall pay Employee an amount equal to the sum of (i) such
additional excise or other tax, (ii) any interest, fines and penalties
resulting from such underpayment, and (iii) an amount necessary to
reimburse Employee for any income, excise or other tax assessment
payable by Employee with respect to the amounts specified in items (i)
and (ii) above, and the reimbursement provided by this clause (iii),
in the manner described above in this Section 19. Payment thereof
shall be made within ten (10) business days after the date upon which
such subsequent determination is made.
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The Company may review Employee's calculation of any payments made
pursuant to this Section 19 and object to the calculation, and
Employee shall refund to the Company any overpayments resulting
from an incorrect or estimated calculation.
8. Except as expressly provided in this Amendment, all other terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective on
the date and year first above written.
AVATEX CORPORATION --------------------------------
Xxxxxx X. Xxxxxxx
By:
---------------------------
Abbey X. Xxxxxx
Co-Chief Executive Officer
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