Exhibit 10.3
AMENDMENT NO. 2 TO THE
EMPLOYMENT AGREEMENT FOR XXXXXX X. XXXXXXX, XX.
This AMENDMENT NO. 2 (this "Amendment") is to the Employment Agreement
dated March 1, 2002, (the "Employment Agreement") and Amendment No. 1 to the
Employment Agreement, effective as of May 24, 2004, by and between Xxxxxx X.
Xxxxxxx, Xx., an individual, hereinafter referred to as "Executive", and Synagro
Technologies, Inc., a Delaware corporation, hereinafter referred to as "Synagro"
or the "Company."
WHEREAS, Executive and Synagro desire and hereby mutually agree to amend
the Executive's Employment Agreement and its Amendment No. 1 in certain limited
respects, as more specifically set forth below; and
WHEREAS, capitalized terms not defined herein shall have the meanings given
to them in the Employment Agreement,
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
and covenants set forth herein, agree as follows:
Amendments to Employment Agreement and Amendment No. 1 Thereto.
1. Compensation. Section "2. Compensation" is amended in part as follows:
The annual base salary stated in section 2, as amended previously in
Amendment No. 1, is hereby changed from $265,200 to $300,000.
2. Rights and Payments Upon Termination. Section "6. Rights and Payments
Upon Termination" as previously amended by paragraph 5 of Amendment No. 1, is
amended in part as follows
(a) The second sentence of Section 6(b), Severance Payment, is
amended in part as follows:
... For purposes of the immediately preceding sentence, X is the sum
of $265,200, and Y is the Executive's bonus payment(s) made by the
Company to the Executive in the Company's fiscal year immediately
preceding the fiscal year in which his termination of employment
occurred. ...
(b) The definition of "Change of Control" set forth in Section 6(b)
is amended to provide:
On and after December 15, 2005, "Change in Control" of the Company
shall be deemed to have occurred if any of the following shall have
taken place: (1) a change in control is reported by the Company in
response to either Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act") or Item 1 of Form 8-K promulgated under the Exchange Act, or any
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successor provisions thereto; (2) any "person" (as such term is used
in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
or any successor provisions thereto, directly or indirectly, of
securities of the Company representing twenty-five (25%) or more of
the combined voting power of the Company's then-outstanding
securities; (3) the approval by the stockholders of the Company of a
reorganization, merger, or consolidation, in each case with respect to
which persons who were stockholders of the Company immediately prior
to such reorganization, merger, or consolidation do not, immediately
thereafter, own or control more than fifty percent (50%) of the
combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated Company's then
outstanding securities, or a liquidation or dissolution of the Company
or of the sale of all or substantially all of the Company's assets;
(4) in the event any person shall be elected by the stockholders of
the Company to the Board of Directors who shall have not been
nominated for election by a majority of the Board of Directors or any
duly appointed committee thereof; or (5) following the election or
removal of directors, a majority of the Board of Directors consists of
individuals who were not members of the Board of Directors consists of
individuals who were not members of the Board of Directors two (2)
years before such election or removal, unless the election of each
director who is not a director at the beginning of such two-year
period has been approved in advance by directors representing at least
a majority of the directors then in office who were directors at the
beginning of the two-year period.
3. The provisions of paragraph 6 of Amendment No. 1 are amended in part
to delete the following sentences in their entirety:
As a condition to receiving the Option Payment, Executive must
surrender all other options to purchase Synagro common stock that he
has been granted. However, the Option Payment shall not be required to
be made if Executive has, at any time, whether before or after the
date of this agreement, been granted (for purposes hereof, existing
options which are repriced to an exercise price of $2.50 shall be
deemed to be re-granted) options to purchase an aggregate amount of
shares of common stock of Synagro equal to the Base Option Amount with
an average strike price of $2.50 or less.
4. The current language under Section 2, as amended, shall be referred to
as subparagraph (a) and the following subparagraph (b) is added to Section 2 as
follows:
(b) For so long as Executive is employed by the Company and for
thirty (30) days thereafter, the following shall apply:
To the extent dividends are declared and paid on Synagro's Common
Stock, the Employee will be entitled to receive shares of Common Stock
under the Synagro Technologies, Inc. 2005 Restricted Stock Plan (or
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any successor equity incentive plan thereto), provided that such
Employee then held options to purchase Common Stock. The value of the
shares of Common Stock received will equal the value of dividends that
would have been payable on the Common Stock underlying the options to
purchase Common Stock then held by such Employee if such options had
been exercised. Common Stock awards relating to options that are then
vested and exercisable will not be subject to any restriction on
transfer. Awards relating to options that are not then vested shall
contain appropriate restrictions on transfer that shall lapse when
such options become vested and exercisable. If the option(s) lapses
and does not vest, then the restricted common stock award(s) related
to such option(s) shall be forfeited and returned to Synagro pursuant
to the 2005 Restricted Stock Plan.
Ratification. Except as expressly amended by this Amendment, the Employment
Agreement and Amendment No. 1 to the Employment Agreement of Xxxxxx X. Xxxxxxx,
Xx. (herein together "the Agreement") shall remain in full force and effect.
None of the rights, interests and obligations existing and to exist under the
Agreement are hereby released, diminished or impaired, and the parties hereby
reaffirm all covenants, representations and warranties in the Agreement.
IN WITNESS WHEREOF; the parties have caused this Amendment to be duly
executed on December 7, 2005.
SYNAGRO TECHNOLOGIES, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx XX
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Name: Xxxxx X. Xxxxxx XX
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Title: EVP General Counsel
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SUBSCRIBED AND SWORN TO before me, the undersigned authority on this 7th
day of December, 2005.
/s/
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Notary Public
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By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Xxxxxx X. Xxxxxxx, Xx., an individual
SUBSCRIBED AND SWORN TO before me, the undersigned authority on this 7th
day of December, 2005.
/s/
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Notary Public
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