FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.6
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT, by and between American Processing Company, LLC, a Michigan limited
liability company (the “Company”); and Xxxxx X. Xxxxx (“Employee”), is entered into on this 29th
day of December 2008, but effective as of the applicable dates set forth below.
PRELIMINARY RECITALS
A. Employment Agreement. The Company and Employee have entered into a written
Employment Agreement (the “Employment Agreement”), dated as of March 14, 2006 (the “Original
Effective Date”), which remains in effect. Since then, Employee has served as President of the
Company until September 20, 2008 (the “Second Effective Date”) when he began serving the Company
as Chairman and Chief Executive Officer of the Company, pursuant to the Employment Agreement. Any
capitalized terms used in this Amendment, and not defined herein, shall have the meanings specified
in the Employment Agreement.
B. Purpose of Amendment. The Company and Employee desire to minimize the risk to
Employee of premature income taxation and unnecessary penalties under Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), by amending certain provisions of the Employment
Agreement to comply with Section 409A of the Code or applicable guidance or regulations thereunder
and to reflect the change to Employee’s title occurring on the Second Effective Date.
AMENDMENT
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree to amend the Employment Agreement as follows:
1. As of the Original Effective Date, two new sentences are hereby added at the end of Section
1, reading as follows:
Further, Employee shall not be entitled to Severance Pay pursuant to this Section 1
unless Employee’s termination without “Cause” constitutes a “Separation from Service”
as such term is defined under Section 409A of the Internal Revenue Code or applicable
guidance or regulations thereunder. Furthermore, the Severance Pay and any other
amount to be paid or benefit to be provided by the Company to the Employee under
Section 1 (and any other payment under this Agreement made in connection with
Employee’s termination of employment) which is deferred compensation subject to
Section 409A of the Code or applicable guidance or regulations thereunder, shall be
paid to Employee in a lump sum on the date which is six (6) months following the date
of Employee’s Separation from Service.
2. As of the Second Effective Date, Employee’s position with the Company shall be Chairman and
Chief Executive Officer.
3. As of the Original Effective Date, a new Section 27 is hereby inserted into this Agreement,
reading as follows:
1
27. Section 409A. It is intended that any income or payments to Employee
provided pursuant to this Agreement (any such income or payments being referred to as
“Payments”) will not be subject to the additional tax and interest under Section 409A
of the Internal Revenue Code (a “Section 409A Tax”). The provisions of the Agreement
will be interpreted and construed in favor of complying with any applicable
requirements of Section 409A necessary in order to avoid the imposition of a Section
409A Tax. The Company and Employee agree to amend (including retroactively) the
Agreement in order to comply with Section 409A, including amending to facilitate the
ability of Employee to avoid the imposition of, or reduce the amount of, any Section
409A Tax. The Company and Employee shall reasonably cooperate to provide full effect
to this provisions and the consent to any amendment described in the preceding
sentence shall not be unreasonably withheld by either party. The parties agree that
neither party has (a) an obligation to bring any potential Section 409A Tax to the
attention of the other party or (b) any liability for any Section 409A Tax or any
other reporting or withholding obligation to the other party.
4. Except as expressly amended in this First Amendment, the Employment Agreement shall remain
in full force and effect according to its terms.
5. This First Amendment may be executed by facsimile or electronic transmission and in one or
more counterparts, each of which shall be an original and together shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned Employee and the Company have executed this Amendment on
the date first stated above, but effective retroactively as of the applicable effective dates
stated above.
| COMPANY: | ||||||
| AMERICAN PROCESSING COMPANY, LLC | ||||||
| By: Xxxxx APC, LLC, its Manager | ||||||
| /s/ Xxxxx X. Xxxxx | ||||||
| By: Xxxxx X. Xxxxx, its President | ||||||
| EMPLOYEE: | ||||
| /s/ Xxxxx X. Xxxxx | ||||
| Xxxxx X. Xxxxx |
2
