THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT
This Third Amendment to Employment Agreement (the
"Amendment") is entered into as of December 15, 2008, by and
between Seaboard Marine Ltd., a Liberian corporation (together
with any Successor thereto, the "Company"), and Xxxxxx X.
Xxxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company and Executive have entered into that
certain Employment Agreement dated as of July 1, 2005, as
amended, setting forth the terms upon which Executive is employed
with the Company; and
WHEREAS, the parties desire to amend certain provisions of
the Employment Agreement to ensure compliance with Internal
Revenue Code 409A and the related regulations, ("Section 409A")
dealing with deferred compensation rules;
NOW, THEREFORE, the parties agree as follows:
1. Definitions. All terms used herein which are not
defined shall have the meanings given to such terms in the
Employment Agreement.
2. Amendment to Section 8.(d) - Definition of Good Reason.
The parties agree that Section 8.(d) is hereby amended and
restated to read as follows:
(d) Termination by Executive. Executive may
resign from his employment for any reason, including
for Good Reason (as defined below in this
subsection (d)). In the event of a termination of
Executive's employment by Executive's resignation other
than for Good Reason, no termination benefits shall be
payable to or in respect of Executive except as
provided in Section 8(f)(ii) and in the event of a
termination of Executive's employment by Executive for
Good Reason, no termination benefits shall be payable
to or in respect of Executive except as provided in
Section 8(f)(i). For purposes of this Agreement, a
termination of employment by Executive for "Good
Reason" shall mean a resignation by Executive from his
employment with the Company within one hundred eighty
(180) days following the initial occurrence, without
Executive's consent, of any one or more of the
following events: (i) a material diminution in the
Executive's authority, duties or responsibilities;
(ii) a material change in the geographic location where
Executive primarily performs his services; or (iii) any
other material breach by the Company of any material
provision of this Agreement; provided that the
Executive shall have given the Company notice of the
occurrence of the event or events constituting Good
Reason within ninety (90) days following the initial
occurrence of such event or such events and the Company
shall have failed to cure such event or events (to the
extent capable of being cured) within thirty (30)
business days after receipt of such notice.
3. Amendment to Section 8.(f)(i) - Payments Upon Certain
Terminations. The parties agree that Section 8.(f)(i) is hereby
amended to add new subsections (F) and (G) immediately following
Section 8.(f)(i) (E), reading as follows:
(F) The Company and Executive agree that
each payment made by the Company to Executive
pursuant to subsections (A) and (B) of this
Section 8.(f)(i) shall be deemed to be a separate
and distinct payment for purposes of Internal
Revenue Code Section 409A and the related
regulations, as opposed to an annuity or other
collective series of payments.
(G) Notwithstanding anything to the contrary
contained herein, to the extent the aggregate
amount to be paid to the Executive pursuant to
Subsections (A) and (B) of this Section 8(f)(i)
during the six (6) months following the Date of
Termination exceeds two (2) times the maximum
amount that may be taken into account under a
qualified retirement plan pursuant to Section
401(a)(17) of the Internal Revenue Code of 1986,
as amended ("Code"), for the calendar year of such
Date of Termination (the "401(a)(17) Limit"), then
payment of such amount that is in excess of two
(2) times the 401(a)(17) Limit shall not be paid
during the sixth (6) months following the Date of
Termination but instead shall be paid in a lump
sum payment on the next day after the date which
is six (6) months following the Date of
Termination.
4. Amendment to Section 8(f)(iv) - Set offs. The parties
agree that Section 8(f)(iv) is hereby amended to add the
following sentence at the end thereof:
Notwithstanding the foregoing, such set off shall
not accelerate the time or schedule of a payment
of Deferred Compensation except as permitted under
Treasury Regulation Section 1.409A-3(j)(4)(xiii).
5. Amendment to Section 18 - Additional 409A Provisions.
The parties agree that Section 18 is hereby amended to add new
subsections (l) (m), and (n) immediately following Section 18(k),
reading as follows:
(l) The Employment Agreement is intended to
comply with, or otherwise be exempt from,
Section 409A. The Company shall undertake to
administer, interpret, and construe the Employment
Agreement in a manner that does not result in the
imposition to the Executive of additional taxes or
interest under Section 409A.
(m) With respect to any reimbursement of
expenses of, or any provision of in-kind benefits
to, the Executive, as specified under the
Employment Agreement, such reimbursement any
expenses or provision
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of in-kind benefits that are Deferred Compensation
shall be subject to the following conditions:
(A) the expenses eligible for reimbursement or
the amount of in-kind benefits provided in one
taxable year shall not affect the expenses
eligible for reimbursement or the amount of in-
kind benefits provided in any other taxable year,
except for any medical reimbursement arrangement
providing for the reimbursement of expenses
referred to in Section 105(b) of the Internal
Revenue Code of 1986 and related regulations; (B)
the reimbursement of an eligible expense shall be
made no later than the end of the year after the
year in which such expense was incurred; and (C)
the right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange
for another benefit.
(n) "Termination of employment,"
"termination," "resignation" or words of similar
import, as used in the Employment Agreement mean,
for purposes of any payments of Deferred
Compensation under the Employment Agreement, the
Executive's "separation from service" as defined
in Section 409A; provided that for this purpose, a
"separation from service" is deemed to occur on
the date that the Company and the Executive
reasonably anticipate that the level of bona fide
services the Executive would perform after that
date (whether as an employee or independent
contractor) would permanently decrease to no more
than twenty percent (20%) of the average level of
bona fide services provided in the immediately
preceding thirty-six (36) months.
6. Miscellaneous. This Amendment shall be governed by the
laws of the State of Florida. This Amendment may be executed in
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
This Amendment constitutes the entire understanding of the
parties with respect to the subject matter hereof. Except as
amended hereby, the Employment Agreement shall continue in full
force and effect.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Company has duly executed this
Amendment by its authorized representative, and Executive has
hereunto set his hand, in each case effective as of the date
first above written.
SEABOARD MARINE LTD.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXECUTIVE:
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
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