AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
AMENDMENT
NO. 1 TO
THIS
AMENDMENT (this “Amendment”), dated as
of December 23, 2009, is entered into by and between Unitek USA, LLC, a Delaware
limited liability company (the “Company”), and C.
Xxxxx Xxxxx (“Employee”).
WHEREAS,
the Company and Employee are parties to that certain Employment Agreement dated
as of July 5, 2009 (the “Agreement”);
WHEREAS,
the Company desires that Employee continue his service to the Company and
Employee desires to continue to serve the Company;
WHEREAS,
the Company and Employee intend that the payments and benefits provided under
the Agreement comply with Section 409A of the Internal Revenue Code;
and
WHEREAS,
the Company intends to combine with a public company and Employee may become a
“specified employee” for purposes of Section 409A of the Internal Revenue
Code.
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
Company and Employee hereby amend the Agreement as follows:
1. The
following paragraph is hereby added as a new Section
1(h):
“Section 409A” means
Section 409A of the Internal Revenue Code and all rules and regulations
promulgated thereunder.
2(a). Clause
(x) in Section
7(a) is hereby deleted in its entirety and replaced with the following
clause:
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(x)
pay to Employee, or his estate, custodian, conservator or trustee, as
applicable, an amount equal to his Base Salary (at the rate then in
effect) that would be payable for a period of twelve (12) months after the
date of such termination of employment, payable to Employee in accordance
with Unitek’s then current payroll practices,
and
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2(b). Clause
(x) in Section
7(d)(i) and Section (7)(d)(ii) is
hereby deleted in its entirety and replaced with the following
clause:
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(x)
pay to Employee, an amount equal to his Base Salary (at the rate then in
effect) that would be payable for a period of twenty-four (24) months
after the date of such termination of employment, payable to Employee in
accordance with Unitek’s then current payroll practices,
and
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3. The
phrase “no less than” shall be deleted wherever it appears in Section 7(a), Section 7(d)(i)
and Section
(7)(d)(ii).
4. The
following paragraph is hereby added as a new Section
7(g):
Delivery of
Release. Notwithstanding anything to the contrary in this
Section 7, in
the event that any severance payments or benefits are subject to Employee’s
execution and delivery of an effective Release, such Release must be
delivered
to the Company within sixty (60) days following the date of Employee’s
termination of employment.
5. The
following paragraph is hereby added as a new Section
22:
Section 409A
Compliance. If any payment or other benefit provided to
Employee in connection with his termination of employment is determined, in
whole or in part, to constitute “nonqualified deferred compensation” within the
meaning of Section 409A and the Company determines that Employee is a “specified
employee” as defined in Section 409A, no part of such payments or benefits shall
be paid before the day that is six (6) months plus one (1) day after Employee’s
termination date (the “New Payment
Date”). The aggregate of any payments that otherwise would
have been paid to Employee during the period between the date of termination and
the New Payment Date shall be paid to Employee in a lump sum on such New Payment
Date. Thereafter, any payments that remain outstanding as of the day
immediately following the New Payment Date shall be paid without delay over the
time period originally scheduled, in accordance with the terms of this
Agreement. Notwithstanding the foregoing, to the extent that the
foregoing applies to the provision of any ongoing welfare benefits to the
Employee that would not be required to be delayed if the premiums therefore were
paid by Employee, Employee shall pay the full cost of premiums for such welfare
benefits during the six (6) month period and the Company shall pay the Employee
an amount equal to the amount of such premiums paid by Employee during such
six-month period promptly after its conclusion.
6. The
following paragraph is hereby added as a new Section
23:
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Separation from
Service. A termination of service shall not be deemed to
have occurred for purposes of any provision of this Agreement providing
for the payment of any amounts or benefits that are considered
nonqualified deferred compensation under Section 409A upon or following a
termination of service, unless such termination is also a “separation from
service” within the meaning of Section 409A and the payment thereof prior
to a “separation from service” would violate Section 409A. For
purposes of any such provision of this Agreement relating to any such
payments or benefits, references to a “termination,” “termination of
employment,” “termination of service,” or like terms shall mean
“separation from service.”
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7. The
following paragraph is hereby added as a new Section
24:
Installments as Separate
Payments. If under this Agreement, an amount is paid in two
(2) or more installments, for purposes of Section 409A, each installment shall
be treated as a separate payment.
8. All
other provisions of the Agreement not specifically amended in this Amendment
shall remain in full force and effect.
9. This
Amendment may be executed in multiple counterparts, which, when taken together,
shall constitute one instrument.
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IN WITNESS WHEREOF, the Company has
caused this Amendment to be executed on its behalf by its duly authorized
officer and Employee has executed this Amendment, as of the date first written
above.
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UNITEK
USA, LLC
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By:
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/s/ Xxxxx Xxxxxxx
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Name: Xxxxx
Xxxxxxx
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Title: Chairman
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EMPLOYEE
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By:
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/s/ C. Xxxxx Xxxxx
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Name: C.
Xxxxx Xxxxx
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