Exhibit 10.4
FINANCIAL FEDERAL CORPORATION
EXCISE TAX RESTORATION AGREEMENT
(EFFECTIVE MARCH 6, 2006)
In consideration of the willingness of the individual
executives and directors of Financial Federal Corporation
(the "Company") who are listed in Attachment A to continue
to serve the Company through any future sale of the Company,
the Company agrees to pay to each of such individuals (the
"Employees") the following amount:
(a) EXCISE TAX RESTORATION PAYMENT. In the event that
it is determined that any payment or distribution of any
type to or for the benefit of the Employee made by the
Company, by any of its affiliates, by any person who
acquires ownership or effective control of the Company or
ownership of a substantial portion of the Company's assets
(within the meaning of section 280G of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder
(the "Code")) or by any affiliate of such person, (the
"Total Payments"), would be subject to the excise tax
imposed by section 4999 of the Code or any interest or
penalties with respect to such excise tax (such excise tax,
together with any such interest or penalties, are
collectively referred to as the "Excise Tax"), then the
Employee shall be entitled to receive an additional payment
(an "Excise Tax Restoration Payment") in an amount that
shall fund the payment by the Employee of any Excise Tax on
the Total Payments as well as any taxes imposed on the
Excise Tax Restoration Payment, any Excise Tax imposed on
the Excise Tax Restoration Payment and any interest or
penalties imposed with respect to taxes on the Excise Tax
Restoration Payment or any Excise Tax.
(b) DETERMINATION BY ACCOUNTANTS. 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
of the Employee's termination date, if applicable, or such
earlier time as is requested by the Company or the Employee
(if the Employee reasonably believes that any of the Total
Payments may be subject to the Excise Tax). If the
Accountants determine that no Excise Tax is payable by the
Employee, it shall furnish the Employee with a written
statement that such Accountants have concluded that no
Excise Tax is payable (including the reasons therefor) and
that the Employee has substantial authority not to report
any Excise Tax on the Employee's federal income tax return.
If an Excise Tax Restoration Payment is determined payable,
it shall be paid to the Employee within five business days
after the Determination is delivered to the Company or the
Employee. Any determination by the Accountants shall be
binding upon the Company and the Employee, absent manifest
error.
(c) UNDERPAYMENTS AND OVERPAYMENTS. As a result of
uncertainty in the application of section 4999 of the Code
at the time of initial determination by the Accountants
hereunder, it is possible that Excise Tax Restoration
Payments not made by the Company should have been made
("Underpayments") or that Excise Tax Restoration Payments
will have been made by the Company which should not have
been made ("Overpayments"). In either event, the
Accountants shall determine the amount of the Underpayment
or Overpayment that has occurred. 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. In the case of an Overpayment, the Employee shall,
at the direction and expense of the Company, take such steps
as are reasonably necessary (including the filing of returns
and claims for refund), follow reasonable instructions from,
and procedures established by, the Company and otherwise
reasonably cooperate with the Company to correct such
Overpayment; PROVIDED, HOWEVER, that (i) the Employee shall
in no event be obligated to return to the Company an amount
greater than the net after-tax portion of the Overpayment
that the Employee has retained or has recovered as a refund
from the applicable taxing authorities and (ii) this
provision shall be interpreted in a manner consistent with
the intent of this agreement, which is to make the Employee
whole, on an after-tax basis, for the application of the
Excise Tax, it being understood that the correction of an
Overpayment may result in the Employee's repaying to the
Company an amount which is less than the Overpayment.
(d) INTEGRATION. This agreement amends and supersedes
provisions concerning parachute payments under section 280G
of the Code and excise taxes under section 4999 of the Code
in any other agreements between the Employee and the
Company.
This agreement is adopted this 6th day of March 2006.
FINANCIAL FEDERAL CORPORATION
By: _________________________________
Xxxx Xxxxxxxxxx
Chief Executive Officer
