EXHIBIT 10.4
AMENDMENT TO EMPLOYMENT AGREEMENT BETWEEN WHITEHALL
JEWELLERS, INC. AND XXXXXXX X. XXXXX
This amendment (the "Amendment") to that certain Employment Agreement
between Whitehall Jewellers, Inc., a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx (the "Executive") dated as November 30, 2004 (the "Employment
Agreement"), is entered into as of August 11, 2005.
WHEREAS, the Company desires to retain the services of Executive as its
President and Chief Operating Officer, upon the terms and conditions set forth
in the Employment Agreement as modified by this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the Company and the Executive hereby agree as follows:
1. Section 1 of the Employment Agreement is hereby superseded in its
entirety, as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to be employed by the
Company upon the terms and subject to the conditions contained in
this Agreement. The term of employment of the Executive by the
Company pursuant to this Agreement shall commence on November 30,
2004 (the "Effective Date") and shall end on December 9, 2005 (the
"Expiration Date"). The term of employment as prescribed in the
preceding sentence is hereinafter called the "Employment Period."
From and after the end of the Employment Period, unless earlier
terminated hereunder, the Executive's employment with the Company
shall be at will, not for any specified term and without any payment
guarantees, and either the Executive or the Company may terminate
the employment relationship at any time.
2. Section 3(a) of the Employment Agreement is hereby superseded in
its entirety, as follows:
3. COMPENSATION. (a) Base Salary. During the Employment
Period, the Company shall pay to the Executive a base salary at the
rate of not less than $425,000 per annum ("Base Salary"), payable in
accordance with the Company's executive payroll policy. Such Base
Salary shall be reviewed annually, and shall be subject to such
annual increases, if any, as determined by the Compensation
Committee of the Board (the "Compensation Committee").
Notwithstanding the foregoing, for purposes of Section 4(d), Base
Salary shall mean $500,000 and the Executive and the Company
acknowledge that the Base Salary was increased to $500,000 from
$425,000 on April 13, 2005.
3. Section 4(d)(i) of the Employment Agreement is hereby superseded
in its entirety, as follows:
d) Termination Without Cause; Termination for Good
Reason. (i) The Company may, at its option, terminate the
Executive's employment under this Agreement upon written notice to
the Executive for a reason other than a reason set forth in Section
4(a), 4(b) or 4(c), or the Executive may terminate her employment
upon 2 days written notice within 60 days prior to the Expiration
Date ("Executive Termination"). Any termination by the Company shall
be authorized by the Board. If the Company terminates the
Executive's employment for any such reason or the Executive provides
notice of an Executive Termination, all obligations of the Company
hereunder shall cease immediately, except that the Executive shall
be entitled to:
(A) payment of any unused vacation and the
payments and benefits specified in Sections 4(b)(i)
through 4(b)(iii) hereof, inclusive; and
(B) the continuation of payment of amounts equal
to the Base Salary which otherwise would have been
payable hereunder had the Executive's employment
hereunder not been terminated pursuant to this Section
4(d) for a period of 12 months from the date of
termination.
Notwithstanding Section 4(d)(i)(B), the amounts payable to the
Executive under such Section 4(d)(i)(B) shall be reduced by the
amount of salary, bonus or other compensation which the Executive
receives from a subsequent employer during the period of time that
amounts are payable to the Executive under such Section 4(d)(i)(B).
The Executive shall use reasonable efforts to seek other comparable
employment for this purpose.
In the event of a termination under this Section, the Company and
Executive shall execute a mutual waiver in form and substance
agreeable to each of the parties, which waiver shall be finalized
between the parties shortly hereafter.
4. To the extent the Employment Agreement is inconsistent with any of the
provisions herein, this Amendment shall control and the Employment Agreement is
hereby amended in all, but only those, respects necessary to be consistent with
this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first written above.
WHITEHALL JEWELLERS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chairman of the Board
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
