RESTRICTED STOCK UNIT AWARD AGREEMENT AMENDMENT NUMBER TWO
Exhibit 10.4
RESTRICTED STOCK UNIT AWARD AGREEMENT AMENDMENT NUMBER TWO
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT AMENDMENT NUMBER TWO (the “Amendment”) is made and
entered into as of April 24, 2008, by and between XXXXX, INC., a North Carolina corporation (the
“Company”), and XXXXX X. XXXXXX (the “Executive”).
Statement of Purpose
The Company and Executive entered into a Restricted Stock Unit Award Agreement dated May 11,
2005 (the “RSU Agreement”). The parties have previously amended the RSU Agreement to re-designate
certain “Cash-Settled Units” under the RSU Agreement as “Stock-Settled Units” pursuant to the
Restricted Stock Unit Award Agreement Amendment dated April 27, 2006. The purpose of this
Amendment is to amend the RSU Agreement for compliance with Section 409A of the Internal Revenue
Code.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto hereby agree that the RSU Agreement is amended effective as of the date hereof as
follows:
1. The following clause is added to the end of the second sentence of Section 5(a) of the RSU
Agreement:
“, but in no event later than 90 days after the fifth anniversary date.”
2. The following clause is added to the end of the third sentence of Section 5(a) of the RSU
Agreement (prior to the parenthetical):
“, but in no event later than 90 days after the Executive’s termination of employment.”
3. Section 11(c) of the RSU Agreement is amended in its entirety to read as follows:
“(c) Compliance with Section 409A of the Internal Revenue Code. This
Agreement is intended to comply with Section 409A of the Internal Revenue Code, to
the extent applicable. Notwithstanding any provisions herein to the contrary, this
Agreement shall be interpreted, operated, and administered consistent with this
intent. In that regard, any payments required by this Agreement in connection with
the Executive’s termination of employment shall not be made earlier than six (6)
months after the date of termination to the extent required by Code Section
409A(a)(2)(B)(i).”
4. Except as expressly or by necessary implication amended hereby, the RSU Agreement shall
remain in full force and effect.
[Signatures on Next Page]
IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized
officer, and Executive has hereunto set his hand, all as of the day and year first above written.
| “Company” XXXXX, INC. |
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| By | s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| “Executive” |
||||
| s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
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