FIRST ACCEPTANCE CORPORATION AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 99.5
FIRST ACCEPTANCE CORPORATION
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT to EMPLOYMENT AGREEMENT is made by and between Xxxxxx X. Xxxxxxxx, Xx.
(the “Executive”) and First Acceptance Corporation, a Delaware corporation (the “Company”)
effective as of September 13, 2006 (the “Amendment Effective Date”).
WITNESSETH:
WHEREAS, the Company entered into an Employment Agreement (the “Employment Agreement”) with
the Executive dated as of April 30, 2004;
WHEREAS, the Company and the Executive desire to amend the Employment Agreement such that no
payments due thereunder would cause Executive to incur any additional tax under Section 409A of the
Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, for the reasons set forth above, the Company and the Executive hereby amend
the Employment Agreement as follows:
1. Six Month Delay for Certain Payments. The following new Section 4(l) shall be
inserted into the Employment Agreement:
“(l) Six Month Delay of Certain Payments. In the event the payment of
any amounts payable pursuant to this Section 4 hereof within six months of the date
of Executive’s termination of employment would cause Executive to incur any
additional tax under Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”) (as determined by Executive’s counsel, if requested by Executive),
then payment of such amounts shall be delayed until the date that is six months
following Executive’s termination date (the “Earliest Payment Date”). If this
provision becomes applicable, it is anticipated that payments that would have been
made prior to the Earliest Payment Date in the absence of this provision would be
paid as a lump sum on the Earliest Payment Date and the remaining severance benefits
or other payments would be paid according to the schedule otherwise applicable to
the payments. In addition, if and to the extent required to prevent a violation of
Section 409A (as determined by Executive’s counsel if requested by Executive),
Executive will pay the entire cost of any health insurance benefits provided under
this Section 4 for the first six (6) months after the effective date of the
termination and the Company will reimburse Executive for the Company’s share of such
costs on the six-month anniversary of Executive’s “separation from service” as
defined in Section 409A.”
2. Certain Definitions. Capitalized terms used in this Amendment not otherwise
defined herein shall have the same meaning as set forth in the Employment Agreement.
3. Counterparts. This Amendment may be executed in counterparts, each of which shall
be an original but all of which shall constitute but one document.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first stated
above.
| FIRST ACCEPTANCE CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Its: | Chief Executive Officer | |||
| /s/ Xxxxxx X. Xxxxxxxx, Xx. | ||||
| Xxxxxx X. Xxxxxxxx, Xx. | ||||
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