Exhibit 10.3


 


GLOBAL GP LLC


 


AMENDMENT NO. 1 TO


EMPLOYMENT AGREEMENT


 


THIS AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered into as of December 31,
2008 by and between Global GP LLC, a Delaware limited liability company (the “Company”),
and Edward J. Faneuil (the “Executive”). 
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Employment Agreement, made as
of February 1, 2007, by and between the Company and the Executive (the “Employment
Agreement”).


 


WHEREAS, , the Company and the Executive desire to
make certain modifications to the Employment Agreement as set forth below,
and  in accordance with Section 18
of the Employment Agreement.


 


NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
each intending to be legally bound, hereby agree as follows:


 


1.                                       Amendments to Employment Agreement.


 


(a)                                  Section 1 of the Employment Agreement is
hereby amended by deleting such section in its entirety and replacing it with
the following:


 


1.                                       Employment and Term of Employment.  Effective as of July 1, 2006
(the “Effective Date”) and continuing for the period of time set forth
herein, the Executive’s employment by the Company shall be subject to the terms
and conditions of this Agreement.  Unless sooner terminated pursuant to
other provisions herein, the Company agrees to employ the Executive for the
period beginning on the Effective Date and ending on December 31, 2008
(the “Initial Term”), and for the period beginning on January 1,
2009 and ending on December 31, 2011. 
In the event that the Company and the Executive renew this Agreement for
one or more additional periods, each of the Initial Term and any renewal
periods shall be referred to as the “Term.”


 


(b)                                 Section 7(a) of the Employment
Agreement is hereby amended by deleting such subsection in its entirety and
replacing it with the following:


 


(a)                                  Definitions.  For purposes of this
Agreement, a “Change in Control” shall occur on the date that any one
person, entity or group (other than Alfred Slifka, Richard Slifka or Eric
Slifka, or their respective family members or entities they control,
individually or in the aggregate, directly or indirectly (collectively referred
to hereinafter as the “Slifkas”)) acquires ownership of the membership
interests of the Company that, together with the membership interests of the
Company already held by such person, entity or group, constitutes more than 50%
of the total voting power of the membership interests of the Company; provided,
however, if any one person, entity or group is considered to own more than 50%
of the total voting power 


 

















 


of the membership interests of the Company, the
acquisition of additional membership interests by the same person, entity or
group shall not be deemed to be a Change in Control.  The definition of “Change in Control” shall
be interpreted, to the extent applicable, to comply with Section 409A(a)(2)(A)(v) of
the Internal Revenue Code of 1986 (the “Code”) and any successor
statute, and/or guidance thereunder, and the provisions of Treasury Regulation Section 1.409A
and any successor regulation and guidance thereto; provided, however, an
interpretation in compliance with Section 409A of the Code shall not
expand the definition of Change in Control in any way or cause an acquisition
by the Slifkas to result in a Change in Control.  For purposes of this Agreement, “Constructive
Termination” shall mean termination of the Executive’s employment by the
Executive as a result of (i) a breach by the Company of a material
provision of this Agreement, which breach is not cured within thirty (30) days
of the Company’s receipt of notice of such breach from the Executive, (ii) the
failure of any successor (whether direct or indirect, by purchase, merger or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in accordance
with the terms of paragraph 14 hereof, which failure is not cured within thirty
(30) days of the Company’s receipt of notice of such failure from the
Executive, or (iii) any material diminution, without the Executive’s
written consent, in the Executive’s working conditions consisting of (A) a
material reduction in the Executive’s duties and responsibilities as Executive
Vice-President and General Counsel of the Company, (B) any change in the
reporting structure so that the Executive no longer reports to the President or
Chief Executive Officer of the Company, or (C) a relocation of the
Executive’s place of work further than forty (40) miles from Waltham,
Massachusetts.  For purposes of
clarification, Constructive Termination shall not include a change in reporting
structure as a result of the Company becoming a subsidiary of an unrelated
entity, including, without limitation, a change whereby the Executive is not
the chief legal officer or general counsel of the acquiring or parent entity or
must report to the chief legal officer or general counsel of a currently
unaffiliated parent corporation or entity. 
For purposes of this Agreement, a “Notice of Termination” shall
mean a notice which shall (I) state the effective date of such
termination, (II) indicate the specific termination provision in this
Agreement relied upon, and (III) set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive’s
employment under the provision so indicated.


 


(c)                                  Section 8 of the Employment Agreement is
hereby amended by deleting such section in its entirety and replacing it with
the following:


 


8.                                       Compensation Upon Termination.  Upon
termination of the Executive’s employment for any reason, the Executive shall
receive payment of (i) the Executive’s Base Salary, as then in effect,
through the date of termination of employment (the “Date of Termination”),
(ii) all the Executive’s earned, but unpaid, bonuses, and (iii) all
accrued vacation, expense reimbursements and any other benefits (other than
severance benefits, except as provided below) due to the Executive through the
Date of Termination in accordance with established Company plans and policies
or applicable law (the “Accrued Obligations”), such payment to be made
on the Date of Termination or as soon as reasonably practicable (but not more
than ten (10) days) thereafter.  In
addition, the following shall apply:


 


(a)                                  Termination for Cause; Voluntary Termination;
Termination Due to Death.  If the Executive’s employment is terminated
by the Company for Cause, by the Executive voluntarily (for reasons other than
Constructive Termination), or by reason of the


 


2

















 


Executive’s death, then the Executive (or his estate, if applicable)
will receive payment of the Accrued Obligations, but Executive shall not be
entitled to any other compensation or benefits from the Company, except to the
extent provided under any Company benefit and/or compensation plan or as may be
required by law.


 


(b)                                 Termination by the Company Without Cause;
Constructive Termination.  If the Executive’s employment is terminated
by the Company without Cause or by the Executive for Constructive Termination,
then the Company shall pay to the Executive an amount equal to the product of (X) the
sum of (i) the Base Salary as in effect on the Date of Termination, plus (ii) if
such termination occurs within twelve months of a Change in Control, an amount
equal to the target incentive amount under the then applicable
short-term incentive plan for the fiscal year in which the termination occurs, multiplied by (Y) two (2) (the “Severance
Amount”).  The Executive shall be
paid the Severance Amount in twenty-four (24) equal monthly installments
commencing on the first day of the month following the Date of Termination. In
addition, the Company shall provide health care continuation coverage benefits
to the Executive pursuant to the Consolidated Omnibus Budget Reconciliation Act
of 1985 (“COBRA”) and shall continue to pay the applicable percentage of the
medical insurance premium the Company pays for active employees towards
Executive’s COBRA coverage during the Executive’s applicable COBRA coverage
period not to exceed a maximum of eighteen (18) months following the Date of
Termination.  The Company’s obligation to
provide COBRA benefits to the Executive shall be subject to the Executive
making an effective election in accordance with COBRA. Notwithstanding the
foregoing, in no event may the Executive terminate his employment for
Constructive Termination pursuant to circumstances described in paragraph 7(a)(iii) until
after a Change in Control occurs.  In
exchange for and as a requirement to receive the compensation set forth in this
Section 8(b) of this Agreement, the Executive and Company (and its
affiliates) shall enter into a general release of claims accrued as of the date
thereof in favor of the Company and its affiliates within 45 days following the
Executive’s “separation of service” as defined in Section 409A of the
Code.  The form and scope of such release
shall be acceptable to the Company and its affiliates, the approval of which
shall not be unreasonably withheld by the Company and its affiliates.


 


(c)                                  Delay in Payments.  Notwithstanding
any other provision with respect to the timing of payments under paragraph 8(b) or
other payments subject to Section 409A(a)(2)(B) of the Code, if, at
the time of the Executive’s termination, the Executive is deemed to be a “specified
employee” (within the meaning of Section 409A of the Code, and any
successor statute, regulation and guidance thereto) of the Company, then only
to the extent necessary to comply with the requirements of Section 409A of
the Code, any payments to which the Executive may become entitled under
paragraph 8 which are subject to Section 409A of the Code (and not
otherwise exempt from its application) or other payments subject to Section 409A(a)(2)(B) of
the Code will be withheld until the first business day of the seventh month
following the Date of Termination, at which time the Executive shall be paid an
aggregate amount equal to six (6) months of payments otherwise due to the
Executive, as applicable.  After the
first business day of the seventh month following the Date of Termination and
continuing each month thereafter, the Executive shall be paid the regular
payments otherwise due to the Executive in accordance with the terms of
paragraph 8(b) or other payment arrangements subject to Section 409A(a)(2)(B) of
the Code, as applicable.


 


3

















 


(d)                                 Section 9 of the Employment Agreement is
hereby amended by deleting such section in its entirety and replacing it with
the following:


 


9.                                       Gross
Up Payments.  The Company will
reimburse the Executive for any and all federal excise taxes and penalties
(other than penalties imposed as a result of the Executive’s actions or
penalties under Section 409A of the Code), and any taxes imposed on such
reimbursement amounts, including, but not limited to, any federal, state and
local income taxes, employment taxes, and other taxes, if any (other than taxes
imposed under Section 409A of the Code), which may become due pursuant to
the application of Section 4999 of the Code on any payments to the Executive
in connection with this Agreement.  Any
such reimbursement payable by the Company shall be (a) subject to Section 8(c) of
the Agreement to the extent such reimbursement would not have been payable but
for the Executive’s “separation from service” (as defined in Section 1.409A-1(h) of
the U.S. Treasury Regulations) and (b) paid no later than the end of the
calendar year next following the calendar year in which the taxes with respect
to which such reimbursement is payable are remitted to the applicable taxing
authority.


 


(e)                                  Section 10 of the Employment Agreement
is hereby amended by adding the following sentence to such section:


 


With respect to any compensation amount payable under
this Agreement that is subject to Section 409A of the Code, references to
the Executive’s “termination of employment” (and variations thereof) shall be
deemed to refer to the Executive’s “separation from service” within the meaning
of Section 1.409A-1(h) of the U.S. Treasury Regulations, applying the
default terms thereof.


 


2.                                       Captions.  The captions of this Amendment
are for convenience and reference only and in no way define, describe, extend
or limit the scope or intent of this Amendment, or the intent of any provision
hereof.


 


3.                                       Choice of Law.  This
Amendment shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, other than conflicts of law provisions thereof.


 


4.                                       Severability.  The
provisions of this Amendment are severable, and the invalidity of any provision
shall not affect the validity of any other provision.


 


5.                                       Counterparts; Facsimile.  This
Amendment may be executed and delivered by facsimile signature and in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


6.                                       Entire
Agreement.  This Amendment
constitutes the full and entire understanding and agreement between the parties
with respect to this Amendment.  Except
as otherwise specifically amended herein, the Employment Agreement shall remain
unchanged, in effect and of its full force.


 


[Signature page follows.]


 


4

















 


IN WITNESS WHEREOF, the parties have duly executed this
Amendment as of the date first written above.


 


 


	
  GLOBAL GP LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Eric Slifka

  	
   

  
	
  Name:

  	
  Eric Slifka

  	
   

  
	
  Title:

  	
  President & CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  EDWARD J. FANEUIL

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Edward J. Faneuil

  	
   

  
	
   

  	
  Edward J. Faneuil

  	
   

  
	
   

  	
  EVP and General Counsel