EXHIBIT 10.9
FIRST AMENDMENT TO EMPLOYMENT CONTRACT
This First Amendment to Employment Contract is made as of December 31,
2005 by and between Orleans Homebuilders, Inc. ("Orleans"), a Delaware
corporation (f/k/a/ FPA Corporation) and Xxxxxxx X. Orleans ("Employee").
BACKGROUND
WHEREAS, Orleans and Employee entered into an Employment Contract as of
June 26, 1987 (the "Original Employment Contract"); and
WHEREAS, Orleans and Employee desire to amend the original Employment
Contract to add a new Section 11.11 setting forth special rules relating to ss.
409A of the Internal Revenue Code.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby and in consideration of the covenants contained herein and other good and
valuable consideration, agree as follows:
A new Section 11.11 is hereby added to the end of Section 11 of the
Original Employment Contract to read in its entirety as follows:
11.11 Special Rules Related to Section 409A of the Internal Revenue
Code. Notwithstanding any provisions of this Agreement to the contrary, in the
event any payment otherwise required to be made under the Agreement, whether
upon termination of employment, or for any other reason, would constitute a
payment of nonqualified deferred compensation, such payment shall be made in a
time and manner such that no amount will be required to be included in the
Employee's income by reason of a failure to comply with the requirements of
Sections 409A(a)(2), (3) and (4) of the Internal Revenue Code of 1986, as
amended (the "Code") (such payment, therefore, being included in the Employee's
income at the time of actual receipt pursuant to other applicable provisions of
the Code). This Section 11.11 shall apply to such payments and to such extent as
necessary so as to avoid imposition of tax or additions to tax pursuant to Code
Section 409A(a)(1). If, for example, it is determined that payments otherwise
required to be made pursuant to Section 8 upon termination of employment would
violate Code Section 409A(a)(2)(B) (requiring that deferred compensation
benefits payable to a key employee of a public company upon separation from
service be delayed until a date that is at least six months after the date of
separation), then no payment otherwise required to be made under Section 8 will
be payable until six months and one day after the Employee's termination of
employment with the Employer. Similarly, in the event (a) a payment is to be
made on account of the Employee's disability pursuant to Section 6 of this
Agreement, and (b) it is determined that the Employee's condition is not
sufficiently severe so that the Employee would be considered "disabled" as that
term is used in Code Section 409A(a)(2)(C), then payment of amounts on account
of the Employee's being disabled shall be considered as paid on account of his
termination of employment or service, and may, to the extent necessary to avoid
imposition of tax pursuant to Code Section 409A(a)(1) be delayed until six
months and one day after the date of the Employee's termination of service or
employment with the Company.
Except as set forth herein, the terms and conditions, provisions of the
Original Employment Contract remain unchanged and such terms, conditions and
provisions are hereby confirmed.
This First Amendment may be executed in more than one counterpart, each
of which shall be an original and all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, Orleans and the Employee have caused this First
Amendment to Employment Contract to be duly executed as of the date first set
forth above.
ORLEANS HOME BUILDERS, INC.
Xxxxxx X. Xxxxxxxxxx
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By: Xxxxxx X. Xxxxxxxxxx
Title: Chief Financial Officer
Xxxxxxx X. Orleans
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Xxxxxxx X. Orleans,
Chairman and Chief Executive Officer
