XXXXXX, INC.
FORM 10-K
FOR FISCAL YEAR ENDED NOVEMBER 30, 1995
EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT AMENDMENT
BETWEEN THE COMPANY AND XXXXXXX X. XXXXXX
DATED NOVEMBER 21, 1995
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment (the "Amendment") dated November 21, 1995 to
the Executive Employment Agreement dated as of January 26, 1994
(the "Agreement") by and between Xxxxxx, Inc., a New Jersey
corporation (the "Employer") and Xxxxxxx X. Xxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the parties hereto agree that it is in their best
interests to terminate the employment relationship of Executive as
President and Chief Executive Officer of Employer; and
WHEREAS, the Executive will resign as a member of the
Employer's Board of Directors; and
WHEREAS, the Employer has agreed to accept the resignation of
the Executive and amend the Agreement in accordance with the
provisions of this Amendment.
NOW THEREFORE, in consideration of the mutual covenants and
promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Effective on Tuesday, November 21, 1995 at 10 a.m. Executive
hereby tenders his resignation as President, Chief Executive
Officer and as a member of the Board of Directors of the Employer
and further resigns in all capacities in which Executive serves for
any of the Employer's subsidiary corporations and as trustee or
administrator for any employee benefit plan sponsored by the
Employer or any of its subsidiaries. The Employer hereby accepts
the Executive's resignation effective upon the execution of this
Amendment.
2. Executive hereby assigns to the Employer that portion of any
cash surrender value in the Whole Life Insurance Policy referenced
in Section 3.4 of the Agreement which represents the full amount of
the accumulated policy premiums paid by the Employer on behalf of
the Executive in accordance with the provisions of Section 3.4 of
the Agreement. Upon Employer's payment of the premiums of $191,260
on or before January 3, 1996, the Employer will have fulfilled its
obligations to provide a fully paid whole life insurance policy and
Employer shall have no further obligations with respect thereto
under Section 3.4.
3. Employer hereby agrees that the provisions of Section 4.5 of
the Agreement are hereby modified to provide that the Executive
shall be entitled to receive all of the benefits and compensation
provided for in Sections 4.4 and 4.7 of the Agreement as a result
of the Executive's resignation of employment with the Employer.
For purposes of this Amendment, the Option Agreement referenced in
Section 3.3 of the Agreement and the Amended Option Grant Agreement
dated April 19,1995, the Executive's resignation shall be deemed
included within the meaning of a termination of the Agreement
pursuant to Section 4.4.
4. The Employer hereby agrees that the Executive is entitled to
21.5 days of accrued and unused vacation days equal to $25,221 to
be paid on or before January 3, 1996. In addition, the parties
agree to modify the payment provisions set forth in Section 4.7(a)
to provide that Executive shall receive normal payroll checks in
the gross amount of $33,628.34 until the end of the calendar year
1995 in accordance with the Employer's normal practices. Within
ten (10) days after January 1, 1996, Employer will pay Executive a
lump sum payment of $316,371.76, which is equal to $350,000 less
the amount of $33,628.34 in payments made to Executive as provided
for in this Section 5. In addition, Xxxxxxxx has agreed to
reimburse Executive the cost of his airline tickets to attend the
Board of Directors Meeting of November 21, 1995 in the amount of
$590 in accordance with normal expense reimbursement procedures of
the Employer.
5. Employer and Executive hereby agree that Executive's Bonus
Compensation pursuant to Section 3.2 of the Agreement shall be
$18,000, and upon payment of that amount to Executive on or before
January 3, 1996, Employer shall have no further obligations to
Executive for any Bonus Compensation under the Agreement.
6. Executive hereby agrees that the provisions of Section 5 of
the Agreement, Covenants of the Executive, shall be binding on the
Executive as set forth therein and for purposes of this Amendment,
the Executive's resignation shall not be deemed to invalidate or
render unenforceable any of the provisions contained in Section 5
of the Agreement. For purposes of this Amendment, as of the date
hereof, the scope of Section 5.1.1 of the Agreement shall not be
deemed to include the states of California, Illinois, Pennsylvania,
Florida with the exception of the Orlando metropolitan area and any
other county in Florida in which the Employer currently owns
property or has executed a contract to purchase land and New Jersey
with the exception of Morris, Warren, Hunterdon, Middlesex,
Somerset, Mercer, Monmouth and Burlington counties.
7. Employer will provide a full accounting to Executive of all
benefits calculations required under Section 4.7 of the Agreement.
8. For purposes of Section 3 of the Supplemental Executive
Compensation Agreement dated May 12, 1995 by and between Employer
and Executive, Executive's resignation shall be treated as a
termination by the Employer in accordance with Section 4.4 of the
Agreement and the provisions of the Supplemental Executive
Compensation Agreement shall not be invalidated thereby.
9. The execution and delivery of this Amendment shall terminate
the following specific provisions of the Agreement: Sections 1, 2,
3.1, 3.5, 3.6, 4.1, 4.2, 4.3 and 4.6. Except as modified herein,
the remaining provisions of the Agreement shall survive and remain
in effect to the limited extent necessary to effectuate the
termination of Executive's employment with the Employer and provide
for the continuing obligations of and payments to the Executive in
accordance with this Amendment and the provision of other benefits
that survive the termination of Executive's employment, including
the provision for indemnification in accordance with Section 8.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on its or his behalf by its officer
thereunto duly authorized or himself, all as of November 21, 1995.
XXXXXX, INC.
/S/ XXXXXX X. XXXXXXXXXX
XXXXXX X. XXXXXXXXXX
Senior Vice President
/s/ XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX
Executive
