AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.2(e)(i)
AMENDMENT
NO. 1
TO
AMENDMENT (“Amendment”) made
as of this 7th day of November, 2008 to the employment agreement dated as of
February 28, 2006, as amended (the “Employment Agreement”), among Finlay Fine
Jewelry Corporation, a Delaware Corporation (the “Company”), and Xxxxx X.
Xxxxxxxx (the “Executive”).
WHEREAS, the Company and the
Executive have previously entered into the Employment Agreement;
and
WHEREAS, the Company and the
Executive desire to amend the Employment Agreement.
NOW, THEREFORE, effective as
of November 7, 2008, the Employment Agreement is hereby amended as
follows:
1. Section
2 of the Employment Agreement is hereby amended to insert a new sentence at the
end thereof to read as follows:
“Any
reimbursements made pursuant to this Section 5 shall be subject to Section 8(d)
hereof.”
2. Sections
4(a) and (b) of the Employment Agreement are amended in their entirety to read
as follows:
“4(a) If
the Company terminates your employment at any time for any reason other than
“good cause” or pursuant to section 4(b) below, subject to the following
sentence, you shall be entitled to receive, as severance pay, in a lump sum, an
amount equal to the greater of (i) your Base Salary at your then current rate up
to an including February 28, 2009 or (ii) one year’s Base Salary at your then
current rate plus one year’s bonus calculated by averaging the Annual Bonus
amounts paid or payable to your over the course of the prior three fiscal
years. The foregoing payment shall be made within sixty (60) days
following such termination, provided that you have executed and delivered a
release and waiver of all claims against the Company relating to employment in a
form satisfactory to the Company (the “Release”), and such Release is no longer
subject to revocation, if applicable, within such sixty (60) day
period.
(b) In
the event your employment is terminated by reason of your death, Total
Disability, by you voluntarily or by the Company with or without “good cause,”
you shall receive (i) any accrued but unpaid salary for services rendered
through and including the date of your death, payable in accordance with the
Company’s normal payroll practices, (ii) any accrued but unpaid expenses,
payable in accordance with the Company’s policy, subject to Section 8(b), and
(iii) any benefits to which you may be entitled pursuant to the Company’s
employee benefits plans then in effect.”
3. A
new Section 8 is hereby inserted at the end of Section 7 of the Employment
Agreement to read as follows:
“8. Section 409A of the
Code.
(a) It
is intended that the payments and benefits under this Agreement be exempt from,
or comply with, Section 409A of Code and the regulations and guidance
promulgated thereunder (collectively “Code Section 409A”), and all provisions of
this Agreement shall be construed in a manner consistent with the requirements
for avoiding taxes or penalties under Code Section 409A. The Company
shall have no liability with regard to any failure to comply with Code Section
409A.
(b) A
termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination
is also a “Separation from Service” within the meaning of Section 409A and, for
purposes of any such provision of this Agreement, references to a “termination,”
“termination of employment” or like terms shall mean Separation from
Service.
(c) Solely
to the extent any payments and/or benefits provided pursuant to this Agreement
constitute “deferred compensation” as defined under Code Section 409A, if you
are deemed on the date of termination of your employment to be a “specified
employee,” within the meaning of that term under Section 409A(a)(2)(B) of the
Code and using the identification methodology selected by the Company from time
to time, or if none, the default methodology, then any such payment or benefit,
to the extent required to be delayed in compliance with Section 409A(a)(2)(B) of
the Code, shall not be made or provided prior to the earlier of (i) the
expiration of the six-month period measured from the date of your Separation
from Service or (ii) the date of your death (the “Delay. Period”). On
the first day of the seventh month following the date of your Separation from
Service or, if earlier, on the date of your death, all payments delayed pursuant
to this Section 8(c) (whether they would have otherwise been payable in a single
sum or in installments in the absence of such delay) shall be paid or reimbursed
to you in a lump sum, and any remaining payments and benefits due under this
Agreement shall be paid or provided in accordance with the normal payment dates
specified for them herein. Promptly following the expiration of such
six-month period, all compensation suspended pursuant to the foregoing sentence
(whether it would have otherwise been payable in a single sum or in installments
in the absence of such suspension) shall be paid or reimbursed to you in a lump
sum.
(d) With
regard to any provision herein that provides for reimbursement of costs and
expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the
right to reimbursement or in-kind benefits shall not be subject to liquidation
or exchange for another benefit, (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits, provided during any taxable year shall not
affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year, provided, that the
foregoing clause (ii) shall not be violated with regard to expenses reimbursed
under any arrangement covered by Section 105(b) of the Code solely because such
expenses are subject to a limit related to the period the arrangement is in
effect, and (iii) such payments shall be made on or before the last day of your
taxable year following the taxable year in which the expense was
incurred.”
IN WITNESS WHEREOF, the
undersigned has caused this Amendment to be executed this 7th day of November,
2008.
| EXECUTIVE | |||
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/s/ Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxxx
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XXXXXX
FINE JEWELRY CORPORATION
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By
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/s/ Xxxxx Xxxxxxx Xxxxxxx | ||
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Name: Xxxxx
Xxxxxxx Xxxxxxx
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Title: EVP
Administration
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