FIRST AMENDMENT TO TERMINATION PROTECTION AGREEMENT
Exhibit 10.51
FIRST AMENDMENT TO
WHEREAS, a Termination Protection Agreement (the “Agreement”) was entered into between Xxxxxxx
X. Xxxxx (“Executive”) and Xxxxxx and Xxxxx Corporation and its successors and assigns (the
“Company”) effective December 2, 2003;
WHEREAS, the Company and Executive mutually consented to the amendment and restatement of the
Agreement, effective January 1, 2005, to reflect the requirements of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”) and the related final Treasury Department
regulations;
WHEREAS, the Board approved the terms and provisions of such amended and restated Agreement at
its meeting on September 5, 2007; and
WHEREAS, the Company and Executive desire to amend and restate the Agreement further, in order
to clarify certain of its provisions that are governed by, or are otherwise subject to, Section
409A of the Code;
NOW, THEREFORE, the Company and Executive the Agreement is hereby amended as follows:
1. Section 1 is hereby amended to read as follows:
Defined Terms.
Unless otherwise indicated herein, capitalized terms used in this Agreement which are defined
in Schedule A shall have the meanings set forth in Schedule A.
The Company and Executive both agree that the definition of “Change in Control” listed in
Schedule A shall be used for Executive in any and all plans, programs or agreements in which
Executive participates or to which Executive is a party in lieu of any similar definition used in
such plans, programs or agreements; provided, however, that the definition of
“Change in Control” listed in Schedule A shall not replace any such similar definition that serves
as a “permissible payment event” (within the meaning of Treas. Reg. § 1.409A-3(a)) under any such
plan, program or agreement.
2. Schedule A is hereby amended to read as follows:
Section (e) of the Definition of “Change in Control” is deleted.
The Definition of “Payment Date” is hereby amended to read as follows:
“Payment Date” means (i) the Delayed Payment Date, if (A) the payment is subject to
Section 409A of the Code, (B) the payment event for purposes of Section 409A of the Code is
Separation from Service, and (C) on the Termination Date stock of the Company (or any other
entity considered a single employer with the Company under Treas. Reg. §1.409A-1(g) or any
successor thereto) is publicly traded on an established securities market or otherwise, or (ii) in
any other case, the date that is ten (10) days after the Termination Date.
IN WITNESS WHEREOF, the parties have executed this Agreement on the ___day of
, 2008.
| XXXXXX & XXXXX CORPORATION | ||||
| By: | ||||
| Title | ||||
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