AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.1.2
The
Employment Agreement dated as of May 31, 2005, as amended by the letter
agreements dated May 10, 2006 and May 3, 2007, by and between Sequa Corporation,
its affiliates, subsidiaries, divisions, successors and assigns (the “Company”)
and Xxxxxx X. Xxxxxx (“Executive”) is hereby amended in the following
respects:
1. Section
6(d) is amended by adding immediately after the first sentence thereof the
following:
“Any
such
pay in lieu of notice shall be paid in the same amount as base salary would
have
been paid for the notice period had Executive continued to work through the
end
of the notice period and shall be paid in accordance with the Company’s normal
payroll practices.”
2. Section
6(e) is amended by adding at the end thereof the following:
“Any
such
pay in lieu of notice shall be paid in the same amount as base salary would
have
been paid for the notice period had Executive continued to work through the
end
of the notice period and shall be paid in accordance with the Company’s normal
payroll practices.”
3. Section
6(f) is amended by adding at the end thereof the following:
“Any
such
pay in lieu of notice shall be paid in the same amount as base salary would
have
been paid for the notice period had Executive continued to work through the
end
of the notice period and shall be paid in accordance with the Company’s normal
payroll practices.”
4. Subsection
(i) of Section 8(a) is amended to read as follows:
“(i) Any
(A) base salary required under Section 5(a) hereof accrued through and including
the date of death plus additional base salary that Executive would have received
had he worked through the entire bi-weekly pay period in which his death
occurred, to be paid in accordance with the Company’s normal payroll practices;
(B) accrued but unused vacation to be paid in accordance with the Company’s
vacation policy and (C) salary accrued during any applicable short-term
disability period to be paid in accordance with the Company’s short-term
disability plan.”
5. Subsection
(i) of Section 8(b) is amended to read as follows:
“(i) Any
accrued but unpaid base salary required under Section 5(a) hereof for services
rendered through and including the effective date of termination, to be paid
in
accordance with the Company’s normal payroll practices.”
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6. Subsection
(i) of Section 8(c) is amended to read as follows:
“(i) Any
accrued but unpaid base salary required under Section 5(a) hereof for services
rendered through and including the effective date of termination, to be paid
in
accordance with the Company’s normal payroll practices.”
7. Subsection
(i) of Section 8(d) is amended to read as follows:
“(i) Any
accrued but unpaid base salary required under Section 5(a) hereof for services
rendered through and including the effective date of termination, to be paid
in
accordance with the Company’s normal payroll practices.
8. Subsection
(iii) of Section 8(d) is amended to read in its entirety as
follows:
“(iii) Executive’s
then-current base salary under Section 5(a) for a period of twelve (12) months
or for the balance of the Employment Term of this Agreement, whichever is
greater (the “Severance Period”), provided Executive executes, within fifty (50)
days following termination of Executive’s employment, an agreement and general
release in a customary form to be provided by the Company in its sole good
faith
discretion and does not revoke such release. It is expressly
understood that said agreement and general release shall not require Executive
to waive (x) any right to indemnification Executive may have under applicable
by-laws or insurance policies maintained by the Company or its subsidiaries,
or
(y) any right to vested employee benefits. Subject to Section 18
hereof, payments under this subsection (iii) shall be made at the same time
and
in the same manner as such salary would have been paid if Executive had remained
in active employment until the end of the Severance Period in accordance with
the Company’s normal payroll practices as in effect on the date of termination
of Executive’s employment, except that any payments that would otherwise have
been made before the first normal payroll payment date falling on or after
the
sixtieth (60th) day after the date of termination of Executive’s employment (the
“First Payment Date”) shall be made on the First Payment Date.”
9. Subsection
(iv) of Section 8(d) is amended to read in its entirely as follows:
“(iv) Medical
and Dental Insurance. If Executive elects to continue
his current medical and dental family coverage under the Company’s Medical and
Dental Plans, the Company shall pay for the Company’s portion of the premiums
for the Severance Period, and Executive shall pay for Executive’s then-current
portion of the premiums for said coverage. With respect to the
medical and dental coverage described in the preceding sentence, the following
conditions shall be met: (i) the amount eligible
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for
reimbursement or payment in one calendar year may not affect the amount eligible
for reimbursement or payment in any other calendar year (except that the
Company’s Medical and Dental Plans may impose a limit on the amount that may be
reimbursed or paid), (ii) any reimbursement must be made on or before the
last
day of the calendar year following the calendar year in which the expense
was
incurred, and (iii) Executive’s right to reimbursement or benefits under
the Company’s Medical and Dental Plans may not be subject to liquidation or
exchange for another benefit. Notwithstanding the above, at such time
as Executive secures new employment providing medical and dental coverage,
Executive shall promptly notify the Company and the Company’s obligation to pay
the Company’s portion of the premiums for coverage will cease. At the
end of the period of coverage described in the foregoing provisions of this
subsection (iv) (the “Medical Coverage Period”), Executive may elect COBRA
continuation coverage for the applicable COBRA period measured from the end
of
the Medical Coverage Period, at his own expense, in accordance with the terms
of
the Company’s Medical and Dental Plans.”
10. Subsection
(vi) of Section 8(d) is amended by adding the following sentence at the end
thereof:
“Such
payment and transfer of possession and ownership shall occur within thirty
(30)
days after termination of Executive’s employment; provided, however, that if
such termination of employment occurs within the last thirty (30) days of a
calendar year, such payment and transfer of possession and ownership will occur
within the first thirty (30) days of the subsequent calendar year.”
11. Subsection
(vii) of Section 8(d) is amended by adding the following sentence at the end
thereof:
“Such
transfer of ownership shall occur within thirty (30) days after termination
of
Executive’s employment.”
12. Subsection
(i) of Section 8(e) is amended to read as follows:
“(i) Any
accrued but unpaid base salary required under Section 5(a) hereof for services
rendered through and including the effective date of termination, to be paid
in
accordance with the Company’s normal payroll practices.”
13. Subsection
(i) of Section 8(f) is amended to read as follows:
“(i) Any
accrued but unpaid base salary required under Section 5(a) hereof for services
rendered through and including the effective date of
termination, to be paid in accordance with the Company’s
normal payroll practices.”
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14. Subsection
(iii) of Section 8(f) is amended to read in its entirety as
follows:
“(iii) Executive’s
then-current base salary under Section 5(a) for a period of twelve (12) months
(the “8(f) Severance Period”), provided Executive executes, within fifty (50)
days following termination of Executive’s employment, an agreement and general
release in a customary form to be provided by the Company in its sole good
faith
discretion and does not revoke such release. It is expressly
understood that said agreement and general release shall not require Executive
to waive (x) any right to indemnification Executive may have under applicable
by-laws or insurance policies maintained by the Company or its subsidiaries,
or
(y) any right to vested employee benefits. Subject to Section 18
hereof, payments under this subsection (iii) shall be made at the same time
and
in the same manner as such salary would have been paid if Executive had remained
in active employment until the end of the 8(f) Severance Period in accordance
with the Company’s normal payroll practices as in effect on the date of
termination of Executive’s employment, except that any payments that would
otherwise have been made before the First Payment Date (as defined in Section
8(d)(iii) hereof) shall be made on the First Payment Date.”
15. Subsection
(iv) of Section 8(f) is amended to read in its entirety as follows:
“(iv) Medical
and Dental Insurance. If Executive elects to continue
his current medical and dental family coverage under the Company’s Medical and
Dental Plans, the Company shall pay for the Company’s portion of the premiums
for the 8(f) Severance Period, and Executive shall pay for Executive’s
then-current portion of the premiums for said coverage. With respect
to the medical and dental coverage described in the preceding sentence, the
following conditions shall be met: (i) the amount eligible for
reimbursement or payment in one calendar year may not affect the amount eligible
for reimbursement or payment in any other calendar year (except that the
Company’s Medical and Dental Plans may impose a limit on the amount that may be
reimbursed or paid), (ii) any reimbursement must be made on or before the last
day of the calendar year following the calendar year in which the expense was
incurred, and (iii) Executive’s right to reimbursement or benefits under
the Company’s Medical and Dental Plans may not be subject to liquidation or
exchange for another benefit. Notwithstanding the above, at such time
as Executive secures new employment providing medical and dental coverage,
Executive shall promptly notify the Company and the Company’s obligation to pay
the Company’s portion of the premiums for coverage will cease. At the
end of the period of coverage described in the foregoing provisions of this
subsection (iv) (the “8(f) Medical Coverage Period”), Executive may elect COBRA
continuation coverage for the applicable COBRA period measured from the end
of
the 8(f) Medical Coverage Period, at his own expense, in accordance with the
terms of the Company’s Medical and Dental Plans.”
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16. Subsection
(vi) of Section 8(f) is amended by adding the following sentence at the end
thereof:
“Such
payment and transfer of possession and ownership shall occur within thirty
(30)
days after termination of Executive’s employment; provided, however, that if
such termination of employment occurs within the last thirty (30) days of a
calendar year, such payment and transfer of possession and ownership shall
occur
within the first thirty (30) days of the succeeding calendar year.”
17. Subsection
(vii) of Section 8(f) is amended by adding the following sentence at the end
thereof:
“Such
transfer of ownership shall occur within thirty (30) days after termination
of
Executive’s employment.”
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18. A
new
Section 18 is added to read in its entirety as follows:
“18. Compliance
with Internal Revenue Code Section
409A.
If
it should be determined that any
payment or benefit under this Agreement constitutes a “deferral of compensation”
subject to Section 409A of the Internal Revenue Code of 1986, as amended, then,
notwithstanding anything in this Agreement to the contrary, (i) if Executive
is
a “specified employee” (within the meaning of said Section 409A and the
regulations thereunder and as determined by the Company in accordance with
said
Section 409A) at the time of Executive’s separation from service (as defined
below), the distribution of any such payment or benefit under this Agreement
on
account of Executive’s termination of employment shall be made no earlier than
the date which is 6 months after the date of Executive’s separation from service
(or, if earlier than the end of such 6-month period, the date of Executive’s
death) to the extent required to comply with said Section 409A and the
regulations thereunder, and (ii) Executive shall be deemed to have
terminated from employment for purposes of this Agreement if and only if
Executive has experienced a “separation from service” within the meaning of said
Section 409A and the regulations thereunder. To the extent any
payment or benefit hereunder is subject to the 6-month delay, such payment
or
benefit shall be paid immediately after the end of such 6-month period (or
the
date of death, if earlier). If this Section 18 becomes applicable,
the provisions of this Agreement governing any payment or benefit constituting
a
“deferral of compensation” shall be interpreted and operated consistently with
the requirements of Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.”
IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Amendment.
/s/
Xxxxxx X.
Xxxxxx
Xxxxxx
X.
Xxxxxx
Dated:
October 24, 2007
SEQUA
CORPORATION
/s/
Xxxx X.
Xxxxxxx
III
Xxxx
X. Xxxxxxx
III
Senior
Vice
President, Legal
and
Corporate
Secretary
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