[INTEGRAMED AMERICA, INC. LETTERHEAD]
December _____, 2008
[Employee Name]
[Address]
[City/State]
RE: Section 409A amendments to
Employee Retention Agreement
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Dear ________________:
The purpose of this letter is to amend the Employee Retention
Agreement, dated _________________, between you and IntegraMed America, Inc.
(the "Agreement") to cause the Agreement to comply with Section 409A of the
Internal Revenue Code, as amended. Terms used in this letter and not defined
herein shall have the same meaning as under the Agreement. The Agreement is
hereby amended as follows:
1. Section 2.1(b) is hereby amended to read as follows:
(b) An amount, to be paid within ninety (90) days after the Termination
Date equal to the greater of (x) the pro-rata portion of the amount
Employee would have earned (notwithstanding the termination of Employee's
employment) as Employee's cash bonus, if any, for the fiscal year of the
Company during which the Qualifying Termination occurs, calculated from the
commencement of such fiscal year through the Termination Date (the "Stub
Bonus Period"); or (y) the amount calculated by multiplying Employee's
Bonus by a quotient, the numerator of which is the number of days contained
in the Stub Bonus Period, and the denominator which is 365.
2. Section 3.3 of the Agreement is hereby amended to read as follows:
3.3 The Company agrees to pay or reimburse Employee following a Qualifying
Termination for reasonable expenses incurred within two (2) years after the
Qualifying Termination for outplacement services in an aggregate amount up
to, but not to exceed, Fifteen Thousand Dollars ($15,000.00), such payment
or reimbursement to be made promptly following the submission by Employee
to the Company of appropriate receipts therefore, it being understood,
however, that the Company shall have no obligation to procure or arrange
for such outplacement services.
[Employee]
December ____, 2008
Page 3
3. Section 13.13 is hereby amended to the end of the Agreement to read as
follows:
13.13 Application of Section 409A.
(a) Notwithstanding anything set forth in this Agreement to
the contrary, no amount payable pursuant to this Agreement which
constitutes a "deferral of compensation" within the meaning of the
Treasury Regulations issued pursuant to Section 409A of the Internal
Revenue Code (the "Section 409A Regulations") shall be paid unless and
until Employee has incurred a "separation from service" within the
meaning of the Section 409A Regulations. Furthermore, to the extent
that Employee is a "specified employee" within the meaning of the
Section 409A Regulations as of the date of Employee's separation from
service, no amount that constitutes a deferral of compensation which is
payable on account of Employee's separation from service shall paid to
Employee before the date (the "Delayed Payment Date") which is the
first day of the seventh month after the date of Employee's separation
from service or, if earlier, the date of Employee's death following
such separation from service. All such amounts that would, but for this
Section, become payable prior to the Delayed Payment Date will be
accumulated and paid on the Delayed Payment Date.
(b) The Company intends that income provided to Employee
pursuant to this Agreement will not be subject to taxation under
Section 409A of the Code. The provisions of this Agreement shall be
interpreted and construed in favor of satisfying any applicable
requirements of Section 409A of the Code. However, the Company does not
guarantee any particular tax effect for income provided to Employee
pursuant to this Agreement. In any event, except for the Company's
responsibility to withhold applicable income and employment taxes from
compensation paid or provided to Employee, the Company shall not be
responsible for the payment of any applicable taxes on compensation
paid or provided to Employee pursuant to this Agreement.
The terms of the Agreement not amended herein shall remain in force and
are not affected by this letter. This Letter Amendment shall be governed by,
construed, and enforced in accordance with the provisions of the Agreement.
If the terms of this letter are acceptable to you, please sign both
copies of this letter indicating your agreement to its terms, keep one signed
copy of the letter for yourself, and return the other signed copy to me. This
letter may be executed in two or more counterparts, each of which will be deemed
to be an original. A signature transmitted by facsimile will be deemed an
original signature.
[Employee]
December ____, 2008
Page 3
Sincerely,
IntegraMed America, Inc.
By:
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Title:
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Accepted and Agreed:
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[Employee]
Date:
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