Exhibit 10(v)
AMENDMENT TO
EMPLOYMENT AGREEMENT
OF
XXXX X. PANETTIERE
THIS AMENDMENT made and entered into as of the 14th day of March,
2001 by and between XXXXXX INTERNATIONAL, INC. (the "Company") and XXXX
X. PANETTIERE ("Executive");
W I T N E S S E T H :
WHEREAS, the Company and Executive entered into an Employment
Agreement, dated as of April 18, 1999 ("Employment Agreement"), which
Agreement became effective on August 19, 1999;
WHEREAS, the parties now desire to amend the Employment Agreement
to provide that the Term shall end on June 30, 2001 and that Executive
shall receive compensation and benefits as hereinafter provided; and
WHEREAS, the parties desire to enter into this Amendment to the
Employment Agreement in order to provide for, among other things, an
orderly transition of Executive's duties and responsibilities to his
successor.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements contained herein and in the Employment
Agreement, the parties hereby agree to amend the Employment Agreement as
follows:
1.
Sections 2(b) and 2(c) are hereby amended by deleting the present
sections in their entirety and substituting the following in lieu
thereof:
"(b)Executive's employment under this Agreement shall
commence at the Effective Time and shall end on June 30, 2001 (the
"Term"; the last day of the Term is hereinafter referred to as the
"Separation Date"). Notwithstanding anything to the contrary in
Section 2(a) or any other provision in the Employment Agreement,
(i) Executive agrees that prior to the Separation Date but not
prior to March 15, 2001, Xxxxxx Xxxxxx may be designated as Chief
Executive Officer of the Company to replace Executive and (ii) for
any period of time after the date Executive ceases to serve as
Chairman of the Board until the Separation Date, the Company
agrees that Executive's title will be Chairman Emeritus.
(c)Effective as of the Separation Date, the Company shall
provide Executive with a Consulting Agreement in the form attached
hereto as Exhibit A (the "Consulting Agreement").
2.
The parties acknowledge and agree that Sections 3(a) through 3(h)
shall remain in effect through the Separation Date and cease to be in
effect thereafter, except for the following clarifications.
(a)The amount owed to Executive pursuant to Section 3(a)
for services between the date of this Amendment and the Separation
Date is $72,917.00 per month. Such amounts shall be payable in
accordance with Section 3(a). No amounts will be owed to
Executive under Section 3(a) on or after the Separation Date.
(b)Any amount owed to Executive pursuant to Section 3(b)
between the date of this Amendment and the Separation Date shall
be payable in accordance with Section 5.4(b). No amounts will be
owed to Executive under Section 3(b) on or after the Separation
Date.
(c)The parties acknowledge that all obligations under
Section 3(c) of the Agreement have been satisfied.
3.
Executive agrees and acknowledges that the provisions of Section 4
of this Agreement shall continue to apply to Executive after the
Separation Date in accordance with the terms thereof.
4.
Section 5 is hereby amended as follows: (i) unless events or
circumstances have occurred prior to the Separation Date (taking into
account Section 2(b), as amended) which give rise to a claim under
Sections 5.1 or 5.2 by Executive or the Company, as the case may be (it
being understood that any such claims shall not be duplicative of the
rights under Section 5.4), Sections 5.1 and 5.2 shall cease to be
effective on and after the Separation Date and (ii) the following new
Section 5.4 shall be added to the end of the present section:
"5.4 Mutually Agreeable Termination. Company and Executive
agree that Executive will terminate his employment on the
Separation Date (as defined in Section 2(b) above) and that
Executive shall receive the compensation and benefits provided
below. The period from the Separation Date until July 31, 2002 is
hereinafter referred to as the "Separation Period". On or about
the Separation Date, the Company and Executive agree that a press
release in substantially the form attached hereto as Exhibit B
will be issued to the news services that the Company uses when it
issues public announcements. If legal counsel to the Company
determines it advisable to do so, the Company will also file such
press release (together with any relevant agreements) with the
Securities and Exchange Commission. The Company and Executive
agree that any additional information provided to the news media,
financial markets and any government agencies will be consistent
with the statements in such press release. Subject to the
following sentence, Executive shall also have the right, after
consultation with the Company, to send letters to certain
customers of the Company with whom Executive has a relationship
concerning his retirement. Consistent with the obligations under
this Employment Agreement and the Consulting Agreement,
(a) Executive shall not make (whether written or oral), any
statement that disparages the Company or its present or future
shareholders, affiliates, officers, directors, employees or
personnel (collectively, the "Company Persons") or the
professional or personal reputation of any of the Company Persons
and (b) the Company shall not make (whether written or oral), any
statement that disparages Executive or his personal or
professional reputation.
(a)Base Salary - In payment of Executive's Base
Salary for the Separation Period, Executive shall receive a
lump sum payment of $918,435.00 (subject to withholding of
all applicable taxes) on the Separation Date.
(b)Bonuses and Incentives - In payment of
Executive's prorata bonus for the 2001 fiscal year and his
bonus for the Severance Period, Executive shall receive a
lump sum payment of $989,621.00 (subject to withholding of
all applicable taxes) on the Separation Date.
(c)Health and Life Insurance Coverage - Executive's
health care coverage (including Exec-U-Care) and group term
life insurance coverage as in effect on the Separation Date
shall be continued for the Separation Period in the same
manner as provided in Section 5.1(c) above (without giving
effect to any termination thereof).
(d)Retiree Healthcare Coverage - The Company's
retiree healthcare coverage for Executive and his dependents
shall commence at the end of the Separation Period. The
level of coverage and costs under such plan for Executive
and his dependents will be the same coverage and costs
provided on the Separation Date for executives and the level
of coverage and costs to Executive for such coverage shall
not be changed in the future (regardless of any changes in
such coverages or costs that may be made that affect other
executives). The obligations of this Section 5.4(d) shall
terminate upon the later of: (i) the death of the Executive
and (ii) the death of his spouse.
(e)Xxxxxx 401(k) Plans - Executive shall receive an
additional payment with respect to the Separation Period for
the Xxxxxx 401(k) Plan in the amount of $7,650.00 in lieu of
such amount becoming part of his account under such Plan,
and for the Xxxxxx Excess 401(k) Plan in the amount of
$78,213.00 in lieu of such amount becoming part of his
account under such Plan. Such payments shall be made to
Executive within ten (10) days of the Separation Date.
Executive may request payment of his account balances in the
Xxxxxx 401(k) Plan and the Xxxxxx Excess 401(k) Plan in
accordance with the terms of such plans.
(f)SERP, Individual SERP and Executive SERP - For
purposes of the Xxxxxx, Inc., and Subsidiaries Supplemental
Retirement Benefit Plan ("SERP"), the Xxxxxx, Inc.
Supplemental Executive Retirement Plan for Xxxx X.
Panettiere ("Individual SERP") and the Executive
Supplemental Retirement Plan of Xxxxxx International, Inc.
("Executive SERP"), Executive shall be entitled on the
Separation Date to a 100% vested benefit under the SERP,
Individual SERP and Executive SERP and shall be treated on
the Separation Date as if he had earned additional years of
benefit service equal to the length of the Separation Period
and had attained age 65. Executive shall be paid his
benefits under the SERP, Individual SERP and Executive SERP
in a lump sum in the following amounts: SERP -
$1,444,954.68; Individual SERP $2,032,207.77; Executive SERP
$3,757,511.09. The lump sum payments to Executive shall be
made within ten (10) days of the Separation Date from the
Xxxxxx, Inc. Executive Benefit Plans Trust, but if the Trust
fails to make any or all of such payments, the unpaid
amounts shall be paid by the Company. The Company and the
Trust shall have no further obligations to Executive in
respect of the SERP, the Individual SERP, the Executive SERP
or any other retirement benefit plan after the making of
this payment, except for the Trust's obligations to pay
Executive's account in the Xxxxxx Excess 401(k) Plan and
Executive's rights under the Company's tax-qualified Defined
Benefit Pension Plan and the Xxxxxx 401(k) Plan.
(g)Executive Life Insurance Program - On or before
the Separation Date, the Company will pay an amount into the
$2.5 million executive life insurance policy as if
Executive's employment had continued for the Separation
Period. The insurance policy (after the payment referred to
in the preceding sentence) shall be delivered to Executive
on the Separation Date, free and clear of any loans, liens
or other encumbrances. Except for subsection (c) above, the
Company shall have no further obligations in respect of the
maintenance of life insurance after such delivery.
(h)Tax Planning - Executive shall be provided for
the year ending December 31, 2001, at the Company's expense
up to an amount not to exceed $15,000, with personal and
financial tax planning, which amount will be payable during
2001 or 2002 depending on when the services are rendered.
(i)Office Space, Secretarial - For the period from
the Separation Date until December 31, 2002, Executive shall
be provided, at the Company's expense, with an equipped
office and his current secretary/administrative assistant
(or a substitute secretary acceptable to Executive). The
secretary/administrative assistant shall receive a level of
compensation and benefits comparable to that received by
such assistant on the Separation Date. Executive's office
will be at a location acceptable to Executive, but will not
be in the Xxxxxxxxxx headquarters building.
(j)Stock Options - On the Separation Date,
Executive's Nonqualified Stock Option (Time Option), dated
August 19, 1999 for 365,000 shares (which amount includes
shares already vested) shall become fully vested and
immediately exercisable. Executive's termination will be
treated as qualifying as "Retirement" for purposes of the
Time Option and Executive shall have until August 19, 2009
to exercise the Time Option. The Time Option is hereby
amended to the extent necessary to reflect the provisions of
this Section 5.4(j).
(k)Employee Stockholder Agreement - As of the
Separation Date, Executive's termination shall be treated as
qualifying as "Retirement" for purposes of Article IV of the
Employee Stockholder Agreement dated as of August 19, 1999
(the "Employee Stockholders Agreement"), and the other
provisions of such agreement. Except as provided in
subsection (1) below, Executive's rights and obligations as
set forth in the Employee Stockholder Agreement shall
continue after the Separation Date.
(1)Sale of Purchased Shares - From and after the
Separation Date, the Company hereby agrees that Executive
shall have the right to sell on the market or in privately-
negotiated transactions the Purchased Shares (as defined in
the Employee Stockholder Agreement) (i) during the period
from August 1, 2002 through December 31, 2002 in an amount
of up to $100,000 worth of Purchased Shares and (ii) in an
amount of up to $250,000 worth of Purchased Shares during
any calendar year thereafter (in each case based upon the
sales price of such Purchased Shares). Executive may only
periodically sell such number of Purchased Shares as would
satisfy the volume limitations of Rule 144 of the Securities
Exchange Commission. The rights provided for in this
Section 5.4(1) shall be in addition to, and not in
substitution for, any rights Executive has under the
Employee Stockholder Agreement, including Executive's rights
to make transfers to Permitted Transferees as provided in
the Employee Stockholder Agreement.
(m)Accrued Vacation - Executive shall be paid his
accrued vacation on the Separation Date.
(n)Business Expenses - Executive shall be
reimbursed on or before the Separation Date for all
reasonable business expenses for which he has submitted
Company expense reports. Executive shall also be reimbursed
for all other reasonable business expenses he has incurred
or paid through the Separation Date promptly after
submission of a Company expense report for such expenses,
including up to, but not more than, $25,000 for expenses
related to the lodging and entertainment of a major customer
on an African trip in April-May, 2001.
5.
The parties agree and acknowledge that Section 5.3 and Sections 6
through 17 of the Employment Agreement shall remain in effect, even
after the Separation Date in accordance with the terms thereof.
6.
Except for the rights under the Employment Agreement, as amended
hereby, the Consulting Agreement and the Employee Stockholders Agreement
and the rights under the related Company plans, programs and benefit
arrangements, (i) Executive has no other rights or claims, contractual
or otherwise, as against the Company or any of the Company Persons or
claims arising out of Executive's employment by and Executive's service
as a director or officer of the Company and the termination of such
employment and service and (ii) the Company has no other rights or
claims, contractual or otherwise, as against Executive or claims against
Executive arising out of Executive's exercise of his responsibilities
and duties as an employee or an officer or director of the Company.
Executive affirms that he has been given at least twenty-one days
within which to consider this release and its consequences, that he has
seven days following his signing of this Amendment to revoke and cancel
the terms and conditions contained herein and the terms and conditions
of this Amendment shall not become effective or enforceable until the
seven-day revocation period has expired, and that, prior to the
execution of this Amendment, he has been advised by the Company to
consult with, and has consulted with, an attorney of his choice
concerning the terms and conditions set forth herein.
7.
This Amendment to the Employment Agreement shall be effective on
the date of this Amendment. Except as hereby modified, the Employment
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
as of the day and year first written above.
XXXXXX INTERNATIONAL, INC.
By:
EXECUTIVE
Xxxx X. Panettiere
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into
as of this 14th day of March, 2001, by and between XXXXXX INTERNATIONAL,
INC, (the "Company") and XXXX X. PANETTIERE ("Consultant").
In consideration of the promises and undertakings herein, the
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1 .Consulting Services. Consultant has served as Chief
Executive Officer of the Company. In order to insure an orderly
transition and to help maintain and develop customer relationships and
otherwise promote the Company, Consultant and the Company agree that
Consultant will, during the period beginning on August 1, 2002 and
continuing through July 31, 2004, be available from time to time to
provide consulting advice and assistance to the Company as reasonably
requested.
2.Authority. Consultant does not have, nor shall he hold
himself out as having, any right, power, or authority to create any
contract or obligation, either express or implied, on behalf, in the
name of, or binding upon the Company, unless the Company shall consent
thereto in advance in writing.
3.Consideration. Consultant shall be compensated at a rate of
$36,458.00 per month for performance of the services described in
paragraph 1 above, the first payment of which is due on August 1, 2002
and then on the first day of each month thereafter through July 1, 2004.
In the event of a Change in Control of the Company (as defined in the
Employee Stockholder Agreement dated August 19, 1999, by and among the
Company and its employee stockholders), Executive shall be paid the
remaining monthly payments due under this Agreement in a lump sum within
ten (10) days of the date of the Change in Control, and Consultant shall
remain available to provide the services required hereunder for the
remainder of the term. Consultant shall have reasonable discretion
concerning the method and manner of performance of his consulting
services. The Company will reimburse Executive for the reasonable out-
of-pocket expenses (including business travel and entertainment) which
he incurs in performing his consulting services under this Agreement.
4.Independent Contractor. Consultant understands and agrees
that he shall not be considered an employee of the Company; during the
term of this Agreement, he shall be classified as an independent
contractor; and that he shall be wholly and exclusively responsible for
and shall pay any and all taxes, fees and assessments (and all interest
and penalties thereon) of every kind and nature arising by reason of, or
in connection with, Consultant's performance hereunder.
5.Continued Agreement. Consultant agrees and acknowledges
that Section 4 of the Employment Agreement, dated as of April 18, 1999,
as amended (the "Employment Agreement") and each of the parties agree
and acknowledge that the last sentence of the introductory paragraph of
Section 5.4 of the Employment Agreement shall remain in effect through
the term of this Consulting Agreement.
6.Governing Law. The validity and effect of this Agreement
shall be governed by and construed and enforced in accordance with the
laws of the state of Delaware, without regard to its of conflict of law
rules.
IN WITNESS WHEREOF, the Company and Consultant have executed this
Agreement as of the day and year first written above.
CONSULTANT
Xxxx X. Panettiere
XXXXXX INTERNATIONAL, INC.
By:
Title:
