THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (this "Amendment" or "Third
Amendment") is made as of July 10, 2000 (the "Amendment Date"), by and between
Xxxxxx Building Systems, Inc., a Delaware corporation (the "Company") and
Xxxxxx X. Xxxxx (the "Employee").
RECITALS
A. Pursuant to that certain Employment Agreement dated February 29, 1996
(the "Original Agreement"), the Company hired the Employee to serve as its
Chief Executive Officer and President.
B. The Original Agreement was amended on October 22, 1997 by the First
Amendment to Employment Agreement ("First Amendment"), and September 22,
1998 by the Second Amendment to Employment Agreement ("Second Amendment").
C. Since the dates of the execution of the Original Agreement, the First
Amendment and the Second Amendment (collectively, the "Agreement"), the
Board of Directors of the Company (the "Board") adopted various
resolutions recognizing the Employee's excellent work, importance to the
Company and continued contribution to the Company.
D. The Company and the Employee desire to further amend certain
provisions of the Agreement to memorialize such resolutions in the
Agreement, in accordance with the terms and provisions of this Third
Amendment.
CLAUSES
In consideration of the preceding, and the obligations, covenants and
duties identified below, the parties amend the Agreement, as follows:
1. Delete existing Sections 1.1(b), 1.1(c) and 1.1(d) in their entirety, and
substitute the following in their place:
"1.1(b) For the period continuing through September 30, 2000, the
Employee shall continue serving as the Company's Chairman of the Board and
Chief Executive Officer and perform the usual duties of such offices as
described in the Company's by-laws; provided, however, the Employee shall
only serve as the Company's Chief Executive Officer until such time when
Employee's successor is named by the Employee and approved by the Board.
1.1(c) Employee will be entitled to continue participating in all
Company, or its successors, health benefits through September 30, 2004, on
terms that are substantially the same as are then in effect for full-time
executive employees of the Company.
1.1(d) The Employee shall continue to devote his exclusive
attention and best efforts to the Company's business on a basis reasonably
determined by Employee, taking into consideration his health, through
September 30, 2000 (the "Term")."
2. Delete existing Section 2.1(d) in its entirety, and substitute the
following in its place:
"2.1(d) For the period continuing through September 30, 2001, an
amount equal to Two Hundred Thousand Dollars ($200,000); and"
3. Delete existing Section 2.1(E) in its entirety, and substitute the
following 2.1(e) in its place:
"2.1(e) For the period commencing October 1, 2001 and continuing
through September 30, 2003, Employee shall be paid an amount equal to One
Hundred Fifteen Thousand Dollars ($115,000) per year. For the period
commencing October 1, 2003 and continuing through September 30, 2004,
Employee shall be paid an amount equal to Fifty Thousand Dollars
($50,000). Said sums are to be payable in equal consecutive monthly
installments as renumeration for past consulting services Employee
rendered to the Company (collectively, "Deferred Compensation"). Said
amounts are guaranteed by the Company and payable by the Company,
notwithstanding Employee's ability to perform future consulting services
for the Company for any reason or no reason."
4. The existing Section 2.2 shall be deemed to be Section 2.2(a), and
the following Section 2.2(b) shall be inserted following Section 2.2(a):
"2.2(b) Special Bonus. In addition to all other compensation
payable to the Employee under the Agreement, as amended by this Third
Amendment, the Company shall pay a special bonus (the "Special Bonus") to
the Employee in an amount equal to Twenty-Eight Thousand Dollars ($28,000)
per year, for the fiscal years 2000, 2001 and 2002. The Special Bonus
shall be paid by the Company to Employee on the last day of each such
fiscal year."
5. Insert Section 3.4 following the existing Section 3.3:
"3.4 Vesting and Payment. All outstanding options granted by the
Company to the Employee at any time shall immediately vest, all payments
of the Special Bonus shall become immediately due and payable, and all
Deferred Compensation payments shall become immediately due and payable:
(i) upon the sale of the Company; (ii) upon the sale of substantially all
of the assets of the Company; or (iii) upon any action that indicates a
Change in Control (as hereinafter defined) will occur immediately. For
purposes of the Agreement, as hereby amended, "Change in Control" shall be
deemed to have occurred on the date that a change in control of a nature
that would be required to be reported in response to Item 6(e) of Schedule
14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended, occurs."
6. The terms and provisions of this Third Amendment shall prevail if there is
any conflict among the terms of the Original Agreement, the First
Amendment, the Second Amendment, and this Third Amendment. However,
except as amended by the First Amendment, the Second Amendment and the
Third Amendment, all terms and provisions of the Original Agreement shall
remain in full force and effect without change, modification or deletion.
7. The laws of the State of Indiana shall govern the terms and provisions of
this Amendment.
The parties have executed this Third Amendment as of the Amendment Date.
EMPLOYEE: THE COMPANY:
Xxxxxx Building Systems, Inc., a Delaware
Corporation
/Xxxxxx X. Xxxxx By: /Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, Individually
Its: Secretary/Treasurer
