FIRST AMENDMENT TO SEVERANCE AGREEMENT
Exhibit 10.13
FIRST AMENDMENT TO
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT
This FIRST AMENDMENT to the Severance Agreement (the “Severance Agreement”) dated April 1,
1999 by and between XXXXXXX X. XXXXXXX (“Employee”) and THE ST. XXX COMPANY, a Florida corporation
(the “Company”), shall be effective as of January 1, 2008.
WHEREAS, the Company and the Employee previously entered into the Severance Agreement in order
to provide for severance benefits to the Employee in certain circumstances if Employee’s employment
with the Company terminated in connection with a Change in Control;
WHEREAS, as a result of the enactment of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), the Company and the Employee desire to amend the Severance Agreement in order
that its provisions comply with the requirements of such Code section, including, without
limitation, the time and form of payment requirements of Code Section 409A;
NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, and for
other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,
the Employee and the Company, intending to be legally bound, hereby amend the Severance Agreement
as follows:
1. Section 6 of the Severance Agreement shall be amended by adding the following sentence to
the end thereof as flush language:
“Notwithstanding anything in this Section 6 to the contrary, if Employee is a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code as of the date of his
termination, then the lump sum amount payable to the Employee under this Section 6 shall be
paid instead to the Employee in a lump sum on the earlier of (x) the date which is six
months following his date of termination and (y) the date of the Employee’s death, and not
before.”
2. Section 7 of the Severance Agreement shall be amended by adding the following sentence to
the end thereof as additional flush language:
“Notwithstanding anything in this Section 7 to the contrary, if Employee is a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code as of the date of his
termination, then the lump sum amount payable to the Employee under this Section 7 shall be
paid instead to the Employee in a lump sum on the earlier of (x) the date which is six
months following his date of termination and (y) the date of the Employee’s death, and not
before.”
3. Section 8(b) of the Severance Agreement shall be amended by adding the following to the end
thereof:
“The amount payable under this Section 8(b) shall be paid to Employee in a lump sum
within eight days after the termination of the Employee’s employment under Section 5,
provided, however, that if Employee is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code as of the date of his termination of employment, then such
amount shall be paid instead to the Employee in a lump sum on the earlier of (x) the date
which is six months following his date of termination and (y) the date of the Employee’s
death, and not before.”
4. Section 8(c) of the Severance Agreement shall be amended by adding the following to the end
thereof:
“For purposes of this Section 8(c), the term “group insurance plans” shall mean and shall
be limited to the plans, programs, practices and policies that constitute bona fide welfare
benefits within the meaning of U.S. Treasury Regulations Section 1.409A-1(a)(5), it being
intended that the amounts to which the Employee or the Employee’s family shall be entitled
under this Section 8(c) shall not constitute “deferred compensation” subject to Code
Section 409A. Any health benefits provided by the Company pursuant to this section shall
either be excludible from gross income pursuant to Code sections 105 or 106 or paid for by
the Employee on an after-tax basis.”
5. Section 9(b) of the Agreement shall be amended by deleting the following sentence from said
Section:
“If a gross-Up payment is determined to be payable, it shall be paid to the Employee within
five days after the Determination is delivered to the Company or the Employee.”
6. Section 9 of the Severance Agreement shall be amended by the addition of the following as
new Section 9(e):
“Notwithstanding any provision of this Severance Agreement to the contrary, any Gross-Up
Payment due to the Employee under this Severance Agreement shall not be made until Employee
has terminated his employment with the Company. Employee shall be paid the initial
Gross-Up Payment due to him under this Severance Agreement, if any, in a single sum, within
eight days after the later of (i) the receipt of the Accounting Firm’s determination, or
(ii) Employee’s Date of Termination; provided, however, that if Employee is a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code as of the date of his
termination, then any Gross-Up Payment payable upon Employee’s termination of employment,
if any, shall be paid instead to the Employee in a lump sum on the
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earlier of (x) the date which is six months following his Date of Termination and (y) the
date of the Employee’s death, and not before. All Gross-Up Payments by the Company to
Employee under this Severance Agreement shall be paid in any event no later than the last
day of the Employee’s taxable year following the taxable year in which the Employee remits
the taxes to which a payment to the Employee by the Company relates.”
7. Section 11 of the Severance Agreement shall be amended by adding the following new Section
11(j):
“(j) Code Section 409A. For any amount hereunder, the determination of whether the
Employee is a “specified employee” within the meaning of Section 409A of the Code as of his
date of termination shall be determined by the Company under procedures adopted by the
Company.”
8. Section 11 of the Severance Agreement shall be amended by adding the following new Section
11(k):
“(f) Determination of Actual Payment Date. Whenever the Agreement provides for a payment
to the Executive hereunder within a specified number of days (such as “within eight days”)
the actual date of payment within such period shall be determined by the Company in its
sole discretion.”
9. The Severance Agreement shall be amended by revising the phrase “within five business days”
to read “within eight days” wherever it appears.
IN WITNESS WHEREOF, the Employee and the Company have executed and delivered this First
Amendment on the date(s) set forth below, but effective as of the date set forth above.
| THE ST. XXX COMPANY |
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| Date: January 12, 2009 | By: | /s/ Xxxxx Xxxxxx | ||
| Xxxxx Xxxxxx | ||||
| Vice President — Human Resources | ||||
| EMPLOYEE |
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| Date: December 31, 2008 | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
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