Form 10-K 1996 Stone & Xxxxxxx, Incorporated
Exhibit 10 (e) (iv)
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
AMENDMENT NO. 1 to EMPLOYMENT AGREEMENT (this "Amendment") by and
between STONE & XXXXXXX, INCORPORATED, a Delaware corporation (the "Company"),
and X. XXXXXX XXXXX (the "Executive"), dated as of January 15, 1997.
WHEREAS, the Company and Executive are parties to an Employment
Agreement, dated as of February 12, 1996 (the "Employment Agreement"); and
WHEREAS, the Company and Executive now desire to amend the Employment
Agreement;
NOW THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the Company and the Executive agree as
follows:
1. Amendment to Section 1. Section 1. of the Employment Agreement is
hereby amended to read in its entirety as follows:
"The Company hereby employs the Executive, and the Executive hereby
accepts such employment, for the period (the "Term of Employment") commencing
February 12, 1996 (the "Commencement Date") and continuing until the earlier of
(a) February 11, 1999 (the "Conclusion Date") or (b) the termination of the
Executive's employment in accordance with this Agreement; provided, however,
that on the first anniversary of the Commencement Date and on each subsequent
anniversary of the Commencement Date, the Conclusion Date shall be extended one
additional year unless (i) not later than sixty (60) calendar days prior to such
anniversary (or any prior such anniversary) either the Company or the Executive
shall have given notice to the other that it or he does not wish to extend the
Conclusion Date or (ii) prior to such anniversary (or any prior such
anniversary) the Executive's employment was terminated in accordance with this
Agreement; provided further, however, that the Term of Employment shall
terminate, and (except as otherwise specifically provided herein) this Agreement
shall terminate and be of no further force or effect, immediately upon the
occurrence of the Effective Date under the Change of Control Employment
Agreement."
2. Amendment to Section 4(b) Section 4(b)of the Employment Agreement
is hereby amended to read in its entirety as follows:
"(b) Annual Bonuses. In addition to Base Salary, the Executive shall be
awarded, for each fiscal year ending during the Term of Employment, an annual
bonus ("Annual Bonus") in cash. For the fiscal year ending December 31, 1996,
the Annual Bonus shall not be less than Two Hundred and Fifty Thousand Dollars
($250,000), and for the fiscal years ending December 31, 1997 and 1998, the
Annual Bonus shall not be less than 50% of Base Salary, as in effect on the last
day of such fiscal year. The amount of each Annual Bonus for the fiscal years
ending December 31, 1996, 1997 and 1998 may be larger than those specified in
the immediately preceding sentence of this Section 4(b) based upon the
Executive's performance and the discretion of the Board; the amount of each
Annual Bonus for fiscal years ending after December 31,
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1998 shall be based on the Executive's performance and the discretion of the
Board. Each such Annual Bonus shall be paid no later than March 31 of the year
next following the fiscal year for which the Annual Bonus is awarded, unless the
Executive shall elect to defer the receipt of such Annual Bonus. Since the
Commencement Date, the Company has adopted the Executive Management Incentive
Compensation Plan of Stone & Xxxxxxx, Incorporated and its Subsidiaries (the
"ICP"); and it is the intent of the parties that a new long-term performance
plan (the "New LTPP") based upon the Company's financial strategic plan and
long-term objectives will be developed for the Company by the management of the
Company (under the direction of the Compensation Committee of the Board and in
consultation with the Company's compensation consultants) and presented to the
Board for approval and that the New LTPP will provide for minimum, target
(equalling a significant portion of the base salary of the participants therein)
and maximum awards based upon the extent to which performance goals determined
by the Compensation Committee of the Board are achieved. If the Executive is
awarded and paid an award under the ICP with respect to any fiscal year ending
during the Term of Employment, where the new LTPP is adopted and the Executive
is awarded and paid an award under the New LTPP with respect to any fiscal year
ending during the Term of employment, then the aggregate amount of such award or
awards under the ICP or the New LTPP (including any portion thereof payable in
the form of awards of restricted stock under the Restricted Stock Plan of Stone
& Xxxxxxx, Incorporated) shall substitute for the Annual Bonus provided for in
this Section 4 (b) for such fiscal year; provided, however, that if the
Executive is awarded and paid an award or awards under the ICP or the New LTPP
with respect to the fiscal years ending December 31, 1997 or 1998, and the
aggregate amount of such award or awards is less than 50% of Base Salary as in
effect on the last day of such fiscal year (or such larger Annual Bonus then in
effect), then the Company shall pay the Executive, at the time such award or
awards are paid, an amount in cash equal to the amount by which 50% of Base
Salary (or such larger Annual Bonus then in effect) exceeds the aggregate amount
of such award or awards."
3. Amendment to Section 5.(b) Section 5.(b) of the Employment Agreement
is hereby amended to read in its entirety as follows:
(b) During the Term of Employment, the Company shall provide the
Executive with (or reimburse the Executive for the cost of) (i) a supplemental
term life insurance policy covering the Executive's life in the face amount of
$1,000,000, (ii) a supplemental disability insurance policy which, when combined
with the disability coverage provided to the Executive pursuant to Section 5 (a)
of this Agreement, will provide the Executive with annual disability benefits
equal to Base Salary, (iii) an automobile, (iv) membership (including
initiation, annual and other membership expenses) in one city business or
luncheon club and one country club and (v) tax, accounting and financial
advisory services. The Company shall pay (or reimburse the Executive for) all
Federal, state or local taxes attributable to (i) the benefits provided for in
this Section 5(b) or (ii) the payment of (or reimbursement for) such taxes
provided for in this sentence of this Section 5(b).
4. Amendment to Section 9(c) (iii). Section 9(c) (iii) of the
Employment Agreement is hereby amended by (i) inserting the words "the ICP or"
after the word "under" and before the word "the" in the parenthetical in clause
(A) thereof, (ii) deleting the word "or" at the end of clause (B) thereof, (iii)
substituting ";or" for the period at the end of clause (c) thereof and (iv)
adding thereto the following clause (D):
"(D) the giving by the Company of a notice pursuant to clause (i) of
the first proviso to Section 1 of this Agreement that it does not wish to extend
the Conclusion Date."
5. Amendment to section 9(d) (i) (A) and (B). The parenthetical that
begins with an open parenthesis on the sixth line of Section 9(d) (i) (A) of the
Employment Agreement and ends with a closed parenthesis on the tenth line of
such Section and the parenthetical that begins with an open parenthesis on the
eighth line of Section 9(d) (i) (B) of the Employment Agreement and ends
immediately prior to the comma on the twelfth line of such Section (where there
should have been a closed parenthesis) are hereby amended to read in their
entirety as follows:
"(or if the ICP or the New LTPP is in effect and the Executive has been awarded
an award or awards under the ICP or the New LTPP with respect to the fiscal year
in which the Date of Termination occurs, (aa) if the Date of Termination occurs
in the fiscal year ending December 31, 1997 or 1998, the greater of such Annual
Bonus or the aggregate amount of the Executive's maximum award or awards under
the ICP or the New LTPP substituting for such Annual Bonus pursuant to Section
4(b) of this Agreement or (bb) if the Date of Termination occurs in any fiscal
year ending after December 31, 1998, then the aggregate amount of the
Executive's maximum award or awards under the ICP or the New LTPP substituting
for such Annual Bonus pursuant to Section 4(b) of this Agreement, with, for
purposes of this Section, any awards under the ICP or the New LTPP being paid
entirely in cash)"
6. Effective Date. This amendment shall be effective as of January
15, 1997 upon the signature of the Company and the Executive.
7. Miscellaneous.
(a) Any capitalized terms used in this Amendment and not otherwise
defined herein shall have the meaning ascribed to such terms in the Employment
Agreement.
(b) This Amendment may be executed in any number of counterparts,
all of which together constitute one and the same instrument.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of New York, without reference to principles of
conflict of laws.
(d) The Employment Agreement, as amended hereby shall remain in full
force and effect.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to authorization from the Board, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
STONE & XXXXXXX, INCORPORATED X. XXXXXX XXXXX
By:
NAME: Xxxxxxxx X. Xxxxxx
TITLE: Executive Vice President
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