FINANCIAL FEDERAL CORPORATION
AMENDMENT TO EXCISE TAX RESTORATION AGREEMENT
This Amendment, is made and entered into as of the 9th day of
December, 2008, by Financial Federal Corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company previously adopted the Excise Tax Restoration
Agreement, effective as of March 6, 2006 (the "Agreement");
WHEREAS, for purposes of bringing the Agreement into compliance
with the plan document requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the "Code"), the Company has prepared
this Amendment which must be adopted on or before December 31, 2008;
and
WHEREAS, the Company desires to adopt this Amendment in order to
comply with Section 409A of the Code.
NOW, THEREFORE, the Parties hereto agree as follows:
Effective as of the date first written above, the Agreement is
hereby amended as follows:
1. The first sentence of Section (b) of the Agreement is hereby
amended in its entirety to read as follows:
"All mathematical determinations and all determinations of whether
any of the Total Payments are "parachute payments" (within the meaning
of section 280G of the Code) that are required to be made under this
agreement, including all determinations of whether an Excise Tax
Restoration Payment is required, of the amount of such Excise Tax
Restoration Payment and of amounts relevant to the last sentence of
this agreement, shall be made by an independent registered public
accounting firm selected by the Company (which may or may not be the
Company's independent external auditors) (the "Accountants"), who shall
provide their determination (the "Determination"), together with
detailed supporting calculations regarding the amount of any Excise Tax
Restoration Payment and any other relevant matters, both to the Company
and to the Employee within seven business days from the earlier of (i)
the Employee's termination date, or (ii) the applicable change in
control event that gives rise to the payments taken into account for
golden parachute purposes."
2. The third sentence of Section (c) of the Agreement is hereby
amended in its entirety to read as follows:
"In the case of an Underpayment, the amount of such Underpayment
shall promptly be paid by the Company to or for the benefit of the
Employee within 30 days of the due date of when the Employee must remit
his/her payment of the Excise Tax."
3. A new Section (e) is hereby added to the Agreement to read as
follows:
"(e) COMPLIANCE WITH 409A. To the extent this Agreement is
subject to Code Section 409A, and notwithstanding any provision in the
Agreement to the contrary, if upon the Employee's "separation from
service" within the meaning of Code Section 409A, he is then a
"specified employee" (as defined in Code Section 409A), then to the
extent necessary to comply with Code Section 409A and avoid the
imposition of taxes under Code Section 409A, the Company shall defer
payment of "nonqualified deferred compensation" subject to Code Section
409A payable as a result of and within six (6) months following such
separation from service under this Agreement until the earlier of (i)
the first business day of the seventh month following the Employee's
separation from service, or (ii) ten (10) days after the Company
receives notification of the Employee's death. Any such delayed
payments shall be made without interest."
* * * * *
FINANCIAL FEDERAL CORPORATION
By:
Xxxx Xxxxxxxxxx
Chief Executive Officer
