AMENDMENT TO
EMPLOYMENT AGREEMENT
AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") dated as of December
3, 2008 between 0-000-Xxxxxxx.xxx, Inc. (the "Company") and Xxxxx X. XxXxxx
(the "Executive").
WHEREAS, the Company and the Executive are parties to an Employment
Agreement dated as of July 1, 1999 (the "Agreement");
WHEREAS, the Company and the Executive wish to amend the Agreement as
set forth herein in order to comply with Section 409A of the Internal
Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the Company and the Executive hereby agree as follows:
1. Section 5(a) is amended by adding the following sentence to the end thereof:
"Any bonus payable under this Section shall be paid to the Executive
after the end of the Company's last fiscal year for which it is earned
but no later than the fifteenth day of the third month of the fiscal
year following the Company's last fiscal year for which the bonus is
earned."
2. Section 6(c) and Section 11(a)(iii), both of which relate to split dollar
life insurance, are deleted.
3. The definition of "Good Reason" in Section 10(g)(iii) of the Agreement is
amended to read in its entirety as follows:
"(iii) "Good Reason" means the occurrence, without the written consent of
the Executive, of any of the following events: (A) the assignment to the
Executive of any duties inconsistent in any material respect with the
Executive's then position (including status, offices, titles and reporting
relationships), authority, duties or responsibilities, or any other action
or actions by the Company which when taken as a whole results in a material
diminution in the Executive's position, authority, duties or
responsibilities; (B) a material breach by the Company of one or more
provisions of this Agreement; or (C) the Company requiring the Executive to
be based at any location other than within 25 miles of the Company's
current executive office location, except for requirements of temporary
travel on the Company's business to an extent substantially consistent with
the Executive's business travel obligations existing immediately prior to
the date of this Agreement; provided, however, that, it shall be a
condition precedent to the Executive's right to terminate employment for
Good Reason that (i) the Executive shall first have given the Company
written notice that an event or condition constituting Good Reason has
occurred within ninety (90) days after such occurrence, and any failure to
give such written notice within such period will result in a waiver by the
Executive of his right to terminate for Good Reason as a result of such
event or condition, and (ii) a period of thirty (30) days from and after
the giving of such written notice shall have elapsed without the Company
having effectively cured or remedied such occurrence during such 30-day
period, unless such occurrence cannot be cured or remedied within thirty
(30) days, in which case the period for remedy or cure shall be extended
for a reasonable time provided that the Company has made and continues to
make a diligent effort to effect such remedy or cure; provided further,
however, that the Executive's termination of employment due to `Good
Reason' must occur not later than two years following the initial existence
of the condition giving rise to `Good Reason.' "
4. New Section 24 is added to read in its entirety as follows:
(a) It is intended that this Agreement will comply with Section 409A
of the Internal Revenue Code of 1986, as amended (the "Code") and any
regulations and guidelines promulgated thereunder (collectively, "Section
409A"), to the extent the Agreement is subject thereto, and the Agreement
shall be interpreted on a basis consistent with such intent. If an
amendment of the Agreement is necessary in order for it to comply with
Section 409A, the parties hereto will negotiate in good faith to amend the
Agreement in a manner that preserves the original intent of the parties to
the extent reasonably possible. No action or failure to act pursuant to
this Section 24 shall subject the Company to any claim, liability, or
expense, and the Company shall not have any obligation to indemnify or
otherwise protect the Executive from the obligation to pay any taxes,
interest or penalties pursuant to Section 409A of the Code.
(b) Notwithstanding any provision to the contrary in this Agreement,
if the Executive is deemed on the date of his or her "separation from
service" (within the meaning of Treas. Reg. Section 1.409A-1(h)) with the
Company to be a "specified employee" (within the meaning of Treas. Reg.
Section 1.409A-1(i)), then with regard to any payment or benefit that is
considered deferred compensation under Section 409A payable on account of a
"separation from service" that is required to be delayed pursuant to
Section 409A(a)(2)(B) of the Code (after taking into account any applicable
exceptions to such requirement), such payment or benefit shall be made or
provided on the date that is the earlier of (i) the expiration of the six
(6)-month period measured from the date of the Executive's "separation from
service," or (ii) the date of the Executive's death (the "Delay Period").
Upon the expiration of the Delay Period, all payments and benefits delayed
pursuant to this Section 24 (whether they would have otherwise been payable
in a single sum or in installments in the absence of such delay) shall be
paid or reimbursed to the Executive in a lump sum and any remaining
payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
Notwithstanding any provision of this Agreement to the contrary, for
purposes of any provision of this Agreement providing for the payment of
any amounts or benefits upon or following a termination of employment,
references to the Executive's "termination of employment" (and corollary
terms) with the Company shall be construed to refer to Executive's
"separation from service" (within the meaning of Treas. Reg. Section
1.409A-1(h)) with the Company.
(c) With respect to any reimbursement or in-kind benefit arrangements
of the Company and its subsidiaries that constitute deferred compensation
for purposes of Section 409A, except as otherwise permitted by Section
409A, the following conditions shall be applicable: (i) the amount eligible
for reimbursement, or in-kind benefits provided, under any such arrangement
in one calendar year may not affect the amount eligible for reimbursement,
or in-kind benefits to be provided, under such arrangement in any other
calendar year (except that the health and dental plans may impose a limit
on the amount that may be reimbursed or paid), (ii) any reimbursement must
be made on or before the last day of the calendar year following the
calendar year in which the expense was incurred, and (iii) the right to
reimbursement or in-kind benefits is not subject to liquidation or exchange
for another benefit. Whenever a payment under this Agreement specifies a
payment period with reference to a number of days (e.g., "payment shall be
made within thirty (30) days after termination of employment"), the actual
date of payment within the specified period shall be within the sole
discretion of the Company. Whenever payments under this Agreement are to be
made in installments, each such installment shall be deemed to be a
separate payment for purposes of Section 409A."
5. Except as set forth herein, the Agreement shall continue in full force and
effect in accordance with its terms.
6. All questions concerning the construction, validity and interpretation of
this Amendment and the Agreement shall be construed and governed in accordance
with the laws of the State of New York, without reference to the principles of
conflict of laws thereof.
7. This Amendment may be executed simultaneously in two or more counterparts,
any one of which need not contain the signatures of more than one party, but all
of which counterparts taken together will constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
/s/ Xxxxx X. XxXxxx
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Xxxxx X. XxXxxx
Chief Executive Officer and
Chairman of the Board of
Directors
