Exhibit 10.8(i)(i)
September __, 1998
Mr. Quintin G. Marshall
69 Indian Head Road
Riverside, Connecticut 06878
Dear Mr. Marshall:
This letter will confirm the agreement between you and Ogden
Corporation (the "Company") that, effective as of October 1, 1998, the
Employment Agreement between you and the Company, dated as of October 30, 1996
(the "Employment Agreement") is hereby amended as follows, all other terms and
conditions of the Employment Agreement remain unchanged and in full force and
effect:
I. Paragraph 1.(a) and the first sentence only of Paragraph
1.(b) Employment/Capacity/Term. of the Employment Agreement
are hereby amended to read as follows, all other terms of
Paragraph 1. remain unchanged and in full force and effect:
"(a) The Company agrees to and does hereby employ the
Employee, and the Employee agrees to and hereby does enter
into the employ of the Company upon the terms and conditions
set forth in this Agreement. Such employment shall be in an
executive capacity as Senior Vice President, Corporate
Development of the Company."
"(b) This Agreement and such employment shall commence on
October 1, 1998 and shall continue through September 30, 1999
(the "Initial Term") and from year to year thereafter (the
"Extended Term") subject to the right of the Employee or the
Company to terminate this Agreement and such employment as of
October 1, 1999 or any subsequent October 1, by written notice
stating an intention to terminate such employment at least
thirty (30) days prior to such termination date stating an
intention to terminate such employment (the "Termination
Date").
II. Paragraph 4. (a) Salary/Bonus/Other Benefits of the Employment
Agreement is hereby amended to read as follows, all other
terms of Paragraph 4. remain unchanged and in full force and
effect:
"(a) an annual salary payable in equal monthly or bi-weekly
installments, in the amount of Two Hundred Fifty Thousand
Dollars ($250,000) or in such greater amount as may from time
to time be fixed by the Board of Directors of the Company".
III. Paragraph 8. Severance Pay. of the Employment Agreement is
hereby amended in its entirety to read as follows:
"8. Severance Pay.
(A) If the Company gives notice to terminate in
accordance with Paragraph 1. (b) of this Agreement or
if the employment of the Employee is terminated at
any time (i) by the Employee for Good Reason (as
defined in Paragraph 9.), or (ii) by the Company for
any reason other than for Cause (as hereinafter
defined), the Company will be obligated to pay the
following amounts to the Employee (the "Severance
Pay"):
(i) Earned But Unpaid Compensation. The Company
shall pay Employee any accrued but unpaid
base salary for services rendered to
Employee's Termination Date, any accrued but
unpaid expenses required to be reimbursed
under this Agreement and any vacation
accrued to Employee's Termination Date.
(ii) Lump Sum Payment. The Company shall pay
Employee an amount equal to the product of
five times the sum of (a) and (b) below:
(a) Employee's annualized base salary at
the highest annual rate in effect at
any time prior to the Employee's
termination date; and
(b) The highest amount of annual bonus
payable to Employee at any time
prior to the Employee's termination
date.
(c) The foregoing amount will be paid to
Executive (less required withholding
taxes) in a single lump sum within
30 business days after the
Termination Date.
(iii) Other Benefits. Any benefits to which
Employee may be entitled pursuant to the
plans, policies and arrangements referred to
in Section 4(c) hereof shall be determined
and paid in accordance with the terms of
such plans, policies and arrangements.
(iv) No Mitigation Required. Except as otherwise
provided herein, Employee shall not be
required to mitigate the amount of any
compensation provided for under this Section
8. by seeking other employment or otherwise,
nor shall the amount of any payment provided
for under this Agreement be reduced by any
2
compensation earned by the Employee as the
result of employment with another employer
after the Employee's termination date or by
any other compensation.
(v) Non-Competition Covenant Does Not Apply. The
restrictive covenant prohibiting competitive
activity set forth in Section 11. below
shall not be applicable to Employee and
shall be null and void.
(vi) No Other Benefits or Compensation. Except as
may be provided under this Agreement, under
the terms of any incentive compensation,
employee benefit, or fringe benefit plan,
applicable to Employee at the time of
Employee's termination or resignation of
employment, Employee shall have no right to
receive any other compensation, or to
participate in any other plan, arrangement
or benefit, with respect to future period
after such termination or resignation.
(B) No Severance Pay will be required if the employment of the
Employee is terminated by the Company for Cause (as
hereinafter defined) or by the Employee (other than for Good
Reason as defined in Paragraph 9) or if the Employee gives
notice to terminate in accordance with Paragraph 1. The
Severance Pay provided herein is provided in order to
reinforce and encourage the continued loyalty, attention, and
dedication of the Employee to the Company's business and
affairs without the concerns which normally arise from the
possibility of a loss of employment security. As used herein,
the terms "Retirement" and "Cause" shall have the following
meanings, respectively:
(a) Retirement.
Termination of the Employee's employment on
account of "Retirement" shall mean
termination on or after the Employee's
normal retirement date in accordance with
the terms of the Ogden 401(k) Plan; and
(b) Cause.
Termination by the Company of the Employee's
employment for "Cause" shall mean
termination as a result of (i) the willful
and continued failure by the Employee to
perform substantially the services
contemplated by this Agreement (other than
any such failure resulting from the
Employee's incapacity due to physical or
mental illness) after a written demand for
substantial performance is delivered to the
Employee by a member or representative of
the Board of Directors of the Company which
specifically identifies the manner in which
it is alleged that the Employee has not
substantially performed such services, or
(ii) the willful engaging
3
by the Employee in gross misconduct which is
materially and demonstrably injurious to the
Company; provided that, no act, or failure
to act, on the Employee's part shall be
considered "willful" unless done, or omitted
to be done, in bad faith and without
reasonable belief that such action or
omission was in, or not opposed to, the best
interests of the Company."
(IV) Paragraph 9. Termination by the Employee for Good Reason of
the Employment Agreement is amended by adding the following
Subparagraph (e) thereto, all other terms of Paragraph 9.
remain unchanged and in full force and effect:
"(e) any "Change in Control" of the Company as
defined in Appendix A to this Agreement".
AGREED AND ACCEPTED Very truly yours,
Ogden Corporation
/s/ Quintin G. Marshall
- ----------------------- Date: September __, 1998 By /s/ R. Richard Ablon
Quintin G. Marshall --------------------------
Chairman of the
Board, President and
Chief Executive
Officer
4
APPENDIX A
DEFINITION OF CHANGE IN CONTROL
The following definition of Change in Control shall apply for purposes of
Paragraph 9.(e) of the Employment Agreement:
Change in Control. Change in Control of the Company shall be deemed to have
occurred as of the first day any one or more of the following conditions shall
have been satisfied:
(a) Any person, or more than one person acting as a group (within the
meaning of the Securities Exchange Act of 1934), other than a trustee
or other fiduciary holding securities under an employee benefit plan
sponsored by the Company, becomes the beneficial owner, directly or
indirectly, of securities of the Company, representing more than
twenty-five percent (25%) of the combined voting power of the Company's
then outstanding securities;
(b) Individuals who, as of May 20, 1998, constitute the Board of Directors
of the Company (the Incumbent Board) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to May 20, 1998, whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board; or
(c) The stockholders of the Company approve: (i) a plan of complete
liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all of the Company's assets; or
(iii) a merger, consolidation, or reorganization of the Company with or
involving any other corporation, other than a merger, consolidation, or
reorganization that would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least seventy-five percent (75%)
of the combined voting power of the voting securities of the Company
(or such surviving entity) outstanding immediately after such merger,
consolidation, or reorganization.
5