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EXHIBIT 10.9
SECOND AMENDMENT TO AMENDED AND RESTATED
AGREEMENT RESPECTING EMPLOYMENT
This Second Amendment (this "Amendment") to the Amended and Restated Agreement
Respecting Employment (the "Agreement") dated as of November 1, 1991, by and
between Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxx ("Employee") is entered into by and between the
Company and Employee effective as of March 1, 1995, as follows:
1. The first sentence of Section 3.A of the Agreement shall be deleted in
its entirety and a new sentence shall be added as the first sentence
of such Section 3.A which shall read as follows:
A base salary shall be payable to the Employee by the Company
as a guaranteed annual amount under this Agreement equal to
$465,000 (as the same may be adjusted as provided in Section
3(B) hereof, the "Base Salary") effective as of March 1, 1995,
for each compensation year thereafter during the term of this
Agreement.
In addition, the Company and Employee acknowledge and agree that the
receipt by Employee of an award or unit of the Company's (or any
successor's) stock which must be recognized by Employee as
compensation will not be excluded from "total annual direct
compensation" under clause (y) of Section 3.A of the Agreement, if,
and to the extent that such stock is granted to Employee in lieu of
incentive compensation which would be included in "total annual direct
compensation".
2. Section 3.B of the Agreement shall be deleted in its entirety and a
new Section 3.B shall be added to the Agreement which new Section 3.B
shall read as follows:
B. Adjustment to Base Salary. The Base Salary payable
from time to time hereunder shall be subject to being
increased (but not decreased) in the sole discretion
of the Compensation Committee of the Company's Board
of Directors.
3. For purposes only of calculating the Annual Retirement Payment under
Section 4.F(ii) of the Agreement, for calendar year 1995 and each
calendar year thereafter, the term "total annual direct compensation"
(as defined in Section 3.A of the Agreement) shall be reduced by each
of the following amounts:
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A. The amount (the "Extra Increase in Base Salary") by which the
Base Salary for each year exceeds $373,515 for 1995 (for 1996
and each year thereafter the 1995 amount ($373,515) will be
adjusted annually on a compounded basis by 100% of the
increase in the Consumer Price Index described in Section
4.F(i) of the Agreement for each twelve-month period from
January 1, 1995 until the first day of each such year); and
B. The part of any incentive or supplemental compensation due to
the Extra Increase in Base Salary (the "Extra Increase in
Incentive Compensation").
As stated above this reduction of total annual direct compensation
shall only apply to calendar years 1995 and thereafter for purposes of
calculating the Annual Retirement Payment under Section 4.F(ii) of the
Agreement.
4. The Company and Employee acknowledge and agree that all other benefits
or payments that Employee and his spouse may receive under the
Company's defined benefit retirement plans (qualified and
nonqualified) in which Employee participates shall be increased on a
compound basis each year by the CPI Adjustment in the same manner as
the Annual Retirement Payment under Section 4.F(ii) of the Agreement.
The aggregate of all such increases to such benefits or payments under
the Company's retirement plans shall be a separate contractual
obligation of the Company to Employee under the Agreement and shall be
payable to Employee in monthly installments in cash at the same time
as the monthly Annual Retirement Payment benefit is paid to Employee.
5. For purposes of determining the Retirement Plan Offset in the fourth
sentence of Section 4.F (ii) of the Agreement (i) the reference to the
Company's retirement plan shall include all defined benefit Company
retirement plans (qualified and nonqualified) in which Employee
participates, (ii) payments shall be assumed to be made in the form of
a 50% joint and survivor annuity with the spouse as the beneficiary
commencing the same date as payments of the Annual Retirement Payment
under the Agreement and (iii) if the Employee's current spouse is not
the Employee's beneficiary at the time of retirement, the payments
shall be assumed to be made in the form of a single life annuity
commencing the same date as payments of the Annual Retirement Payment
under the Agreement.
6. For purposes of determining the 2.86 percent reduction to the
Retirement Plan Offset included in Section 4.F(ii) of the Agreement
(i) the reduction shall be calculated using a recomputed Retirement
Plan Offset where such recomputed Retirement Plan Offset is calculated
assuming Employee has 35 years of service regardless of actual service
or when his retirement occurs, (ii) payments shall be assumed to be
made in the form of a 50% joint and survivor annuity with the spouse
as the beneficiary commencing the same date as payments
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of the Annual Retirement Payment under the Agreement and (iii) if the
Employee's current spouse is not the Employee's beneficiary at the
time of retirement, the payments shall be assumed to be made in the
form of a single life annuity commencing the same date as payments of
the Annual Retirement Payment under the Agreement.
7. For calendar year 1995 and each calendar year thereafter, the 2.86
percent reduction to the Retirement Plan Offset included in Section
4.F(ii) of the Agreement shall not apply to the part of the Retirement
Plan Offset attributable to the Extra Increase in Base Salary (defined
above) and the Extra Increase in Incentive Compensation (defined
above).
8. The Company and Employee acknowledge and agree that, subject to any
appropriate adjustment of the number of shares pursuant to the terms
of this Agreement, Employee is entitled to be granted options to
purchase 44,400 shares of common stock of the Company in September,
1995. The Company and Employee agree that, subject to any appropriate
adjustment of the number of shares pursuant to the terms of this
Agreement, Employee shall be issued options to purchase 44,400 shares
of the common stock of the Company in the period from October 1, 1995
through December 15, 1995 (the timing of such issuance during such
period to be determined in the sole discretion of the Compensation
Committee of the Company's Board of Directors), instead of options to
purchase 44,400 shares of common stock of the Company in September,
1995.
As amended hereby, the terms of the Agreement shall be and remain in full force
and effect.
IN WITNESS WHEREOF, the parties have executed and delivered this Second
Amendment to Amended and Restated Agreement effective as of the day and year
indicated above.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
XXXXXXXX-XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
Chairman of the Board
and Chief Executive Officer
Address: X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000
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