AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit
10.28
AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS
AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made as of the ____ day
of ____ 2007, by and between Burlington Coat Factory Warehouse Corporation,
a
Delaware corporation (the “Company”), and ____________________
(“Executive”).
WHEREAS,
the Company and the Executive
entered into an EMPLOYMENT AGREEMENT dates as of ______________ (the “Employment
Agreement”); and
WHEREAS,
the Company and the Executive
desire to amend the Employment Agreement on the terms and conditions hereinafter
set forth;
NOW,
THEREFORE, in consideration of the
premises and the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties hereto agree as follows:
1. Section
1,
Definitions, of the Employment Agreement is hereby amended to add the
following to the end of the definition of “Good Reason”:
“;
provided, however, no condition enumerated in the preceding shall be deemed
to
be “Good Reason” unless within thirty (30) days of the initial existence of such
condition, Executive shall have given the Company written notice thereof
specifically describing the condition giving rise to “Good Reason” and allowing
the Company a period of at least thirty (30) days from the date of receipt
of
the notice to remedy such condition. Notwithstanding the foregoing,
in no event will a condition give rise to “Good Reason” hereunder unless within
ten (10) days after the expiration of the period provided in the Executive’s
notice for the Company to remedy said condition but in no event later than
one
hundred and twenty (120) days initial existence of said condition, Executive
shall have actually terminated his employment with the Company by giving written
notice of resignation for failure of the Company to remedy such
condition.
2. The
following Subsection
(g) is hereby added to the Section 4 of the Employment Agreement:
“(g) Notwithstanding
anything herein to the contrary, if, at the time any payment is payable to
Executive pursuant to the provisions of Section 4(b)(i) above as a result of
Executive’s “separation from service” (within the meaning of Section 409A of the
Internal revenue Code of 1986, as amended (the “Code”) and the regulations
promulgated thereunder, the Company or any company in the affiliate group in
which the Company’s financial statements are consolidated in accordance with
generally accepted accounting principles has a class of equity securities traded
on an established domestic or foreign securities market or otherwise including,
without limitation, trading on an American exchange only as American Depositary
receipts (“ADR’S”) and Executive is designated a “specified person” (as such
term is defined in Section 409A of the Code and the regulations promulgated
thereunder) on a list prepared by the Company periodically pursuant to Section
409A of the Code and the regulations promulgated thereunder, then during the
six
month period from and after the date of Executive’s “separation from service”
the amount payable to Executive pursuant to the provisions of Section 4(b)(i)
of
the Employment Agreement shall not exceed the lesser of (x) two times
Executive’s annual base compensation or (y) two times the amount determined
pursuant to Section 401(a)(17) of the Code, and any excess amount which accrues
to Executive during such period shall be withheld during such period and paid
to
Executive in a lump sum upon the expiration of six months after the date of
“separation from service” (or , if earlier than the end of such six month
period, upon Executive’s death). Any further amounts payable
to
Executive
pursuant to Section 4(b)(i) thereafter accruing shall be paid on their scheduled
payment dates.”
3. Except
as modified or
amended hereby or inconsistent herewith, the Employment Agreement is hereby
confirmed and ratified.
IN
WITNESS WHEREOF, the parties have executed this Amendment on the day and year
first above written.
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By:
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Name:
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Title:
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EXECUTIVE:
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Name:
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