Exhibit 10.114
Amendment dated as of May 15th, 2003 (this "Amendment") to the Amended and
Restated Employment Agreement made as of the 17th day of April 2002 (the
"Agreement") between I.C. Xxxxxx & Company, L.P., a Delaware limited partnership
(the "Company") and Xxxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Executive is employed pursuant to the Agreement as the
Company's President - Girbaud Division; and
WHEREAS, the Company desires to modify the terms of the Executive's
employment and his responsibilities under the Agreement in the manner
hereinbelow provided; and
WHEREAS, the Executive is willing to accept such modifications,
NOW, THEREFORE, in consideration of the foregoing and the mutual terms and
provisions hereinafter set forth, the parties agree as follows:
1. Amendment of Section 1. The provisions of Section 1 of the Agreement are
hereby deemed to have been amended to read, as follows:
"1. Employment. The Company hereby employs the executive as President.
The Executive will report to the Chairman of the Board of Directors of the
Company's parent, I.C. Xxxxxx & Company, Inc. ("Xxxxxx")."
2. Amendment of Section 2. The provisions of Section 2 of the Agreement are
hereby deemed to have been amended to read, as follows:
"2. Term. This Agreement shall begin on February 17, 2002 ("the
Effective Date") and shall continue until December 31, 2005 (the "Initial
Term"). This Agreement shall be automatically extended for additional
periods of one calendar year (each, a "Renewal Term") commencing with
calendar year 2006 unless, on or before September 30 of the last calendar
year of the Initial Term or the then current Renewal Term, as the case may
be, either party gives notice to the other of its or his intention not to
extend the Agreement beyond the end of the Initial Term or the then current
Renewal Term. The Initial Term and all Renewal Terms taken together are
hereinafter collectively referred to as the "Term."
3. Amendment of Section 4. Any incentive compensation payable to the
Executive during any year of the Term that ended on or before December 31, 2002
shall be calculated and paid in accordance with the provisions of Section 4 of
the Agreement as in effect prior to the date of this Amendment ("Old Section
4"). Old Section 4 is hereby deemed to have been deleted and replaced by the
following which shall be effective for all calendar years of the Term that
commenced, or that shall commence, on or after January 1, 2003:
"4. Incentive Compensation. In addition to his base salary, the
Executive shall be entitled to receive incentive compensation calculated
and paid, as follows:
(a) Calendar Year 2003. In the event that Xxxxxx achieves not less
than $300,000 of net income for calendar year 2003 (determined by reference
to the consolidated statement of operations contained in Xxxxxx' annual
audited consolidated financial statements (the "Xxxxxx Financial
Statements") for such year, the Executive shall be eligible to receive the
following bonuses with respect to calendar year 2003 (the "Initial
Period"):
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(i) In the event that the earnings before interest and taxes achieved by
Xxxxxx during calendar year 2003 shall be:
(1) not less than 95% of, and not more than 110% of, the "EBIT Target"
specified by the Company for such year, the Company shall pay the Executive
a bonus of $87,500;
(2) not less than 111% of, and not more than 130% of, the "EBIT
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $113,750; or
(3) more than 130% of the "EBIT Target" specified by the Company for
such year, the Company shall pay the Executive a bonus of $148,750;
(ii) in the event that the cash provided by operating activities reflected
on the consolidated statement of cash flows contained in Xxxxxx' annual audited
financial statements for calendar year 2003 shall be:
(1) not less than 95% of, and not more than 110% of, the "Cash Flow
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $70,000;
(2) not less than 111% of, and not more than 130% of, the "Cash Flow
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $91,000; or
(3) more than 130% of the "Cash Flow Target" specified by the Company
for such year, the Company shall pay the Executive a bonus of $119,000; and
(iii) in the event that the number of turns of the Company's inventory for
calendar year 2003 shall be:
(1) not less than 95% of, and not more than 110% of, the "Inventory
Turns Target" specified by the Company for such year, the Company shall pay
the Executive a bonus of $17,500;
(2) not less than 111% of, and not more than 130% of, the "Inventory
Turns Target" specified by the Company for such year, the Company shall pay
the Executive a bonus of $22,750; or
(3) more than 130% of the "Inventory Turns Target" specified by the
Company for such year, the Company shall pay the Executive a bonus of
$29,750.
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(b) Balance of Initial Term and all Renewal Terms. The Executive shall be
eligible to receive the following bonuses with respect to calendar years 2004,
2005 and each Renewal Term:
(i) In the event that the earnings before interest and taxes achieved by
Xxxxxx during any of such years shall be:
(1) not less than 95% of, and not more than 110% of, the "EBIT Target"
specified by the Company for such year, the Company shall pay the Executive
a bonus of $113,750;
(2) not less than 111% of, and not more than 130% of, the "EBIT
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $140,000; or
(3) more than 130% of the "EBIT Target" specified by the Company for
such year, the Company shall pay the Executive a bonus of $175,000;
(ii) in the event that the increase in cash and cash equivalents reflected
on the consolidated statement of cash flows contained in Xxxxxx' annual audited
financial statements for any of such years shall be:
(1) not less than 95% of, and not more than 110% of, the "Cash Flow
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $91,000;
(2) not less than 111% of, and not more than 130% of, the "Cash Flow
Target" specified by the Company for such year, the Company shall pay the
Executive a bonus of $112,000 or
(3) more than 130% of the "Cash Flow Target" specified by the Company
for such year, the Company shall pay the Executive a bonus of $140,000; and
(iii) in the event that the number of turns of the Company's inventory
during any of such years shall be:
(1) not less than 95% of, and not more than 110% of, the "Inventory
Turns Target" specified by the Company for such year, the Company shall pay
the Executive a bonus of $22,750;
(2) not less than 111% of, and not more than 130% of, the "Inventory
Turns Target" specified by the Company for such year, the Company shall pay
the Executive a bonus of $28,000; or
(3) more than 130% of the "Inventory Turns Target" specified by the
Company for such year, the Company shall pay the Executive a bonus of
$35,000.
(c) Definitions. For purposes of this Agreement, the term:
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(i) "EBIT Target" shall mean the amount that the Company shall
designate as the earnings before interest and taxes that Xxxxxx must
achieve in order for the Executive to earn the bonus described in Sections
4 (a) (i) and 4 (b) (i) of this Agreement;
(ii) "Cash Flow Target" shall mean the amount that the Company shall
designate as the cash provided by operating activities that Xxxxxx must
achieve in order for the Executive to earn the bonus described in Sections
4 (a) (ii) and 4 (b) (ii) of this Agreement; and
(iii) "Inventory Turns Target" shall mean the number of turns of the
Company's inventory that the Company must achieve, as designated by the
Company, in order for the Executive to earn the bonus described in Sections
4 (a) (iii) and 4 (b) (iii) of this Agreement.
(d) The EBIT Target, Cash Flow Target and Inventory Turns Target shall be
specified in writing by the Company not more than 60 days after the date of this
Amendment with respect to calendar year 2003, and not more than 60 days after
the first day of each other year during the Initial Term and each Renewal Term
with respect to such year.
(e) Determination of the achievement of:
(i) the EBIT Target shall be made by adding the sum of the interest
expense net of interest income, and income tax expense (but not income tax
benefit) reflected on the consolidated statement of operations contained in
Xxxxxx Financial Statements for the year in question from the line item
entitled Net income" on such consolidated statement of operations;
(ii) the Cash Flow Target shall be made by reference to the line item
entitled "cash provided by operating activities" reflected on the
consolidated statement of cash flows contained in the Xxxxxx Financial
Statements for the year in question; and
(iii) the Inventory Turns Target shall be made by reference to the
quotient obtained by dividing:
(1) the cost of goods sold reflected on the consolidated statement of
operations contained in the Xxxxxx Financial Statements for the year in question
by
(2) the quotient derived by dividing the sum of the beginning and ending
inventories for the year in question, as determined by reference to the notes to
the Xxxxxx Financial Statements for such year, by the number 2.
(f) Each of the bonuses described in Sections 4(a), (b) and (c) which shall
be earned during any calendar year or part thereof during the Term shall be paid
not more than 10 days after the date upon which Xxxxxx' Annual Report on Form
10-K for the year in question shall be filed with the SEC.
(g) Anything elsewhere contained in this Agreement to the contrary
notwithstanding, in the event that the aggregate amount of the bonuses that the
Executive shall receive pursuant to (i) Sections 4(a) (i), (ii) and (iii) shall
be less than $100,000 and such aggregate amount to the Executive; and (ii)
Sections 4(b) (i), (ii) and (iii) shall be less than $125,000, the Company shall
pay the difference between $125,000 and such aggregate amount to the Executive.
Payment of such amount shall be made in accordance with the provisions of
Section 4(f) of this Agreement.
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3. Amendment of Section 6A. The provisions of Section 6A of the Agreement
are hereby deemed to have been amended to read, as follows:
"6. Duties.
A. During the term of this Agreement, the Executive shall serve as
President of the Company. He have such powers and shall perform such duties
as are incident and customary to his office, including the duties of a
President described in the By-Laws of Xxxxxx (as amended from time to
time), and shall perform such other executive and administrative duties and
functions commensurate with such position as from time to time shall be
assigned to him by the Chairman of the Board of Directors of Xxxxxx. The
Executive shall perform such additional duties and functions without
separate compensation, unless otherwise authorized by the Board of
Directors of Xxxxxx."
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4. Continuation of Effectiveness of the Agreement. The Agreement, as
amended by this Amendment, shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
I.C. Xxxxxx & Company, L.P.
By: I.C. Xxxxxx & Company, Inc.,
General Partner
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, COO
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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