Contract
Exhibit
99.1
 |
||
| B. Xxxxxxx Xxxxxxxxx | ||
| Vice President and | ||
| Chief Human Resources Officer | ||
May 5,
2009
Xx. Xxxxx
X. Xxxxxxxx
Senior
Vice President and Chief Financial Officer
Brunswick
Corporation
0 X.
Xxxxx Xx.
Xxxx
Xxxxxx, XX 00000
Re: Amendment
to Terms and Conditions of Employment Dated October 29, 2008
Dear
Xxxxx:
As we
have discussed, this amendment letter (the “Amendment”) shall constitute an
amendment to the Terms and Conditions of Employment (the “Agreement”) entered
into between Brunswick Corporation (“Brunswick”) and you on October 29, 2008, in
accordance with Section 16 of the Agreement.
The
purpose of this Amendment is to eliminate provisions in the Agreement, including
without limitation Section 10, which could entitle you to certain payments from
Brunswick in the event that your receipt of any element of compensation or
benefit under the Agreement subjects you to excise tax liability.
All
capitalized terms used in this Amendment but not otherwise defined herein will
have the same meaning as defined in the Agreement, and all section references
are to a section of the Agreement, unless otherwise specified.
Accordingly,
you and Brunswick hereby agree that, notwithstanding anything to the contrary
set forth in the Agreement:
1. Excise
Tax. Except as provided in Paragraph 2 of this Amendment,
Section 10 of the Agreement will be deleted in its entirety and the following
language will be inserted in its place:
In the
event that it is determined (by the reasonable computation by an
independent accounting or consulting firm chosen by the Company (the “Firm”),
which determination shall be certified by the Firm and set forth in a
certificate delivered to the Executive) that the aggregate amount of the
payments, distributions, benefits and entitlements of any type paid or provided
to the Executive under the terms of this Agreement or under any other plan,
program, policy, or other arrangement, either alone or in combination with other
elements of compensation and benefits paid or provided to the Executive
(including any payment, distribution, benefit or entitlement made by any person
or entity effecting a Change in Control), in each case, that could be considered
“parachute payments” within the meaning of Section 280G of the Code (such
payments, the “Parachute Payments”) that, but for this Section 10 would be
payable to the Executive, exceeds the greatest amount of Parachute Payments that
could be paid to the Executive without giving rise to any liability for any
excise tax imposed by Section 4999 of the Code (or any successor provision
thereto) or any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any such
interest or penalties, being hereafter collectively referred to as the “Excise
Tax”), then the aggregate amount of Parachute Payments payable to the Executive
shall not exceed the amount which produces the greatest after-tax benefit to the
Executive after taking into account any Excise Tax to be payable by the
Executive. For the avoidance of doubt, this provision will reduce the
amount of Parachute Payments otherwise payable to the Executive, if doing so
would place the Executive in a better net after-tax economic position as
compared with not doing so (taking into account the Excise Tax payable in
respect of such Parachute Payments). The Executive shall be permitted
to provide to the Company written notice specifying which of the Parachute
Payments will be subject to reduction or elimination; provided, however, that to the
extent that the Executive’s ability to exercise such authority would cause any
Parachute Payment to become subject to any Section 409A Tax, or if the Executive
does not provide the Company with any such written notice, the Company shall
reduce or eliminate the Parachute Payments by first reducing or eliminating the
portion of the Parachute Payments that are payable in cash and then by reducing
or eliminating the non-cash portion of the Parachute Payments, in each case in
reverse order beginning with payments or benefits which are to be paid the
furthest in time from the date of the Firm’s determination. Except as
set forth in the preceding sentence, any notice given by the Executive pursuant
to the preceding sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing the Executive’s rights and entitlements
to any benefits or compensation.
2. Cross
References. All references in the Agreement to Section 10 and
the Excise Tax Adjustment Payment are hereby deleted; provided, however, that the
procedural provisions set forth in Sections 10(c), (d) and (e) of the Agreement
will continue to apply to Section 7(d) of the Agreement to the extent applicable
to the Section 409A Tax. Additionally, the definitions of “Excise
Tax”, “Excise Tax Adjustment Payment”, “Firm”, “Floor Amount” and “Potential
Parachute Benefit” in Appendix 1 of the Agreement are hereby
deleted. For the avoidance of doubt, Brunswick shall have no
obligation to you with respect to any excise tax obligations or liabilities that
may be imposed pursuant to Section 4999 of the Internal Revenue Code of 1986, as
amended, in connection with any Parachute Payments.
3. Full Force and
Effect. For the avoidance of doubt, except to the extent
expressly modified by this Amendment, all terms of the Agreement will remain in
full force and effect following the date of this Amendment.
4. Governing
Law. The validity, interpretation, construction, and
performance of this Amendment shall be governed by the laws of the State of
Illinois, without regard to its choice of laws provisions, for contracts made
and to be performed wholly in such state.
5. Headings. Headings
to paragraphs hereof are for convenience of reference only and shall not be
construed to alter or affect the meaning of any provision of this
Amendment.
6. Entire
Agreement. This Amendment, together with the Agreement and the
appendices attached thereto, contains the entire agreement between you and
Brunswick concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between you and Brunswick with respect hereto. You
acknowledge and agree that this Amendment constitutes an amendment to the
Agreement in respect of your participation and rights to any benefits
thereunder. This Amendment may not be modified or amended except by a
writing signed by each of the parties hereto.
7. Counterparts. This
Amendment may be executed in two or more counterparts, any one of which shall be
deemed the original without reference to the others.
Intending
to be legally bound hereby, the parties have executed this Amendment on the
dates set forth next to their names below.
| BRUNSWICK CORPORATION | |||
|
Dated:
May 5, 2009
|
By:
|
/s/ B. XXXXXXX XXXXXXXXX | |
| Name: B. Xxxxxxx Xxxxxxxxx | |||
| Title: Vice President and Chief Human Resources Officer | |||
|
Dated:
May 5, 2009
|
By:
|
/s/ XXXXX X. XXXXXXXX | |
| Name: Xxxxx X. Xxxxxxxx | |||
