FIRST AMENDMENT TO THE SEVERANCE AGREEMENT
Exhibit 10.6(b)
THIS FIRST AMENDMENT TO THE SEVERANCE AGREEMENT (“Amendment”) is dated as of the ________ day
of ___________, 2008, by and between Xxxx X. Xxxxxxx (“Executive”) and CBS Personnel Holdings, Inc.
a Delaware corporation (the “Company”).
WHEREAS, the Company and Executive entered into a Severance Agreement, effective as of October
2, 2006, (the “Agreement”);
WHEREAS, pursuant to Section 5(c) of the Agreement, the parties now desire to amend the
Agreement to ensure that any payments made thereunder are made in compliance with Section 409A of
the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder;
NOW, THEREFORE, effective as of the date set forth above, the parties hereto, in consideration
of the promises and premises set forth herein, agree as follows:
1. Section 3(e) of the Agreement is amended to add a new subsection (v) as follows:
(v) If the stock of CBS or an affiliate is publicly traded on an
established securities market or otherwise as of Executive’s date of
termination, and Executive is a “Specified Employee” as of such date, then
to the extent any portion of the payments made under paragraph 3(e)(i)(B)
exceed the “409A Severance Limit,” the payments in excess of the 409A
Severance Limit shall not be paid earlier than six (6) months and one (1)
day after the date of termination. If any payments are delayed due to such
requirements, such amounts will be paid in a lump sum to Executive on the
first payroll date that occurs six (6) months and one (1) day after
Executive’s date of termination.
For purposes of this Agreement, “409A Severance Limit” shall mean the
lesser of (i) two (2) times Executive’s annual compensation or (ii) two (2)
times the limit on compensation set forth in Section 401(a)(17) of the
Internal Revenue Code of 1986, as amended (the “Code”), for the year in
which the date of termination occurs. “Specified Employee” shall have the
meaning set forth in Section 409A of the Code, and the Treasury Regulations
promulgated thereunder.
2. Section 3(f) of the Agreement is amended in its entirety as follows:
(f) Change in Control. If Executive’s employment is terminated (i)
without Cause by CBS within the [one (1) year period] after the effective date of a
“Change in Control” of CBS, or (ii) with “Good Reason” by Executive within the
1
[one (1) year period] after the effective date of a Change in Control, then
Executive shall be entitled to receive the payments from CBS in accordance with
paragraph 3(e), Termination Without Cause.
For purposes of this Agreement, “Change in Control” shall mean the occurrence
of a “Change in the Ownership of the Corporation,” a “Change in the Effective
Control of the Corporation,” or a “Change in the Ownership of a Substantial Portion
of the Corporation’s Assets,” as such terms are defined in Section
1.409A-3(i)(5)(v)-(vii) of the Treasury Regulations.
For purposes of this Agreement, Executive shall have “Good Reason” to terminate
her employment with CBS, if she terminates her employment within one (1) year of a
material diminution in her base compensation or a material change in the geographic
location at which she must perform services for CBS; provided, however, Executive
shall not have “Good Reason” to terminate her employment unless CBS has received
written notice of the existence of such Good Reason condition from Executive within
ninety (90) days of the initial existence of the Good Reason condition and CBS has
failed to cure such Good Reason condition within thirty (30) days of receiving such
notice.
3. In all other respects the Agreement shall remain unchanged.
IN WITNESS WHEREOF, the Company has caused this First Amendment to the Severance Agreement to
be signed by its duly authorized representative and Executive has signed this Amendment as of the
day and year first above written.
| CBS PERSONNEL HOLDINGS, INC. | ||||
By: |
/s/ Xxxxxxx Xxxxx | /s/ Xxxx X. Xxxxxxx | ||
| XXXX X. XXXXXXX | ||||
Name: |
Xxxxxxx Xxxxx | |||
Title: |
VP HR | |||
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