AMENDMENT TO EMPLOYMENT CONTRACT ERWIN WEISS Amendment to comply with Code Section 409A
Exhibit 10(xxxvii)
AMENDMENT TO EMPLOYMENT CONTRACT
XXXXX XXXXX
Amendment to comply with Code Section 409A
THIS AMENDMENT (the “Amendment”) to the employment contract dated May 6, 2002 (the “Agreement”) between American Greetings Corporation (the “Corporation”) and Xxxxx Xxxxx (the “Executive”) is effective as of January 1, 2009.
WHEREAS, the Corporation desires to amend the Agreement to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and rulings promulgated thereunder; and
WHEREAS, the Corporation previously delegated the authority to adopt amendments to any benefit plan or agreement of the Corporation to incorporate such changes as may be necessary to comply with law, including, without limitation, Code Section 409A, to certain specified officers, including the Senior Vice President of Human Resources; provided, that no such amendment shall result in a material increase in the liability or payment obligations of the Corporation without prior approval of the Compensation and Management Development Committee of the Board of Directors of the Corporation.
NOW, THEREFORE, this Amendment shall amend the Agreement as set forth below:
1. Effective as of January 1, 2009, a new Section 6 shall be added to the Agreement to read as follows:
“6. Compliance with Code Section 409A. Notwithstanding the other provisions of this employment agreement, all provisions of this employment agreement shall be construed and interpreted to comply with Code Section 409A and the regulations and rulings promulgated thereunder and, if necessary, any provision shall be held null and void to the extent such provision (or part thereof) fails to comply with Section 409A or regulations thereunder.
(a) Definitions. The terms used in the employment agreement shall have the following meaning:
(i) “Separation from Service” shall have the meaning set forth in Treasury Regulations Section 1.409A-1(h).
(ii) “Specified Employee” shall have the meaning set forth in Treasury Regulations Section 1.409A-1(i).
(b) Delay of Payment for Specified Employees. Notwithstanding any provision of this employment agreement to the contrary, in the event the Executive is a Specified Employee as of the date of such Executive’s Separation from Service, any amounts that are subject to Code Section 409A that are payable upon the Executive’s Separation from Service shall be held for delayed payment and shall be distributed on or immediately after the date which
is six months after the date of the Executive’s Separation from Service. All payments made under this employment agreement, other than the payment set forth in Section 3, shall be made in installment payments in accordance with the Corporation’s normal payroll practices. The payment set forth in Section 3 shall be made in a single lump sum. The first payment made to the Executive following the six-month delay shall be equal to the first six monthly installment payments that would have commenced immediately following the Executive’s Separation from Service if the Executive had not been subject to the required six-month delay. The delayed payments shall not be adjusted for interest.
(c) In-Kind Benefits. Any reimbursements or in-kind benefits shall be made or provided in accordance with the requirements of Code Section 409A, including, where applicable, the requirement that: (i) any reimbursement is for expenses incurred during the period of time specified in accordance with this employment agreement, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
(d) Amendment of Inconsistent Provisions. To the extent that any provision of this employment agreement is inconsistent with the requirements of Code Section 409A and the regulations and rulings promulgated thereunder, this employment agreement is hereby amended to delete such inconsistent provisions.”
2. This Amendment may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
3. Except as otherwise provided herein, the Agreement shall be unaffected by this Amendment.
| AMERICAN GREETINGS CORPORATION |
| /s/Xxxxx XxXxxxx |
| By: Xxxxx XxXxxxx |
| Title: Senior Vice President, Human Resources |
| Date: 12-19-08
|
| /s/Xxxxx Xxxxx |
| Xxxxx Xxxxx |
| Date: 12-19-08 |
