AMENDMENT TO INDEMNIFICATION AGREEMENT
Exhibit 10.4
AMENDMENT TO INDEMNIFICATION AGREEMENT
This Amendment to Indemnification Agreement (this “Agreement”), is entered into between XXXXX
XXXXXX INCORPORATED, a Delaware corporation (the “Company”), and (the “Indemnitee”)
effective as of January 1, 2009.
W I T N E S S E T H:
Whereas, the Company and the Indemnitee previously entered into an Indemnification
Agreement dated (the “Indemnification Agreement”); and
Whereas, the Company and the Indemnitee desire to amend the Indemnification Agreement
to bring the Indemnification Agreement into documentary compliance with section 409A of the
Internal Revenue Code of 1986, as amended and the rules and regulations issued thereunder by the
Internal Revenue Service and the Department of Treasury.
Now, therefore, it is hereby agreed that effective as of January 1, 2009, the Indemnification
Agreement is amended by adding thereto the following new Section 29:
29. Compliance With Section 409A. Notwithstanding any other provision of this
Agreement, to the extent that any payment hereunder is not exempt from section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) pursuant to the
application of Department of Treasury Regulation Section 1.409A-1(b)(10) or other
applicable exemption (a “409A Payment”) the following provisions of this Section 29
shall apply with respect to such 409A Payment. The Company shall make a 409A
Payment due under this Agreement at the time specified above in this Agreement. The
parties intend and agree that such payment deadline is not to be extended as a
result of the following sentence which is included solely for the purpose of
complying with Section 409A. The Company shall make a 409A Payment by the last day
of the taxable year of the Indemnitee or the spouse of the Indemnitee, as
applicable, following the taxable year in which such legal fees and expenses were
incurred. The legal fees or expenses that are subject to reimbursement pursuant to
this Agreement shall not be limited as a result of when the fees or expenses are
incurred. The amounts of legal fees or expenses that are eligible for reimbursement
pursuant to this Agreement during a given taxable year of the Indemnitee or the
spouse of the Indemnitee, as applicable, shall not affect the amount of expenses
eligible for reimbursement in any other taxable year. The right to reimbursement
pursuant to this Agreement is not subject to liquidation or exchange for another
benefit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
January 1, 2009.
XXXXX XXXXXX INCORPORATED
By: |
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Title:
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Chairman, President & CEO | |||||||
Date:
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Date: | |||||||
