SECOND AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.4
SECOND AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Second Amendment to Amended and Restated Employment Agreement (this “Second Amendment” is
made effective as of the 31st day of December, 2008 (the “Effective Date”) by and between BEAZER
HOMES USA, INC., a Delaware corporation (the “Company” ) and XXXXXXX X. XXXXXX, an individual
resident of the State of Georgia (the “Executive”).
WITNESSETH:
WHEREAS, the Company and Executive have heretofore entered into an Amended and Restated
Employment Agreement made effective as of February 6, 2006 (the “Existing Agreement”); and
WHEREAS, the Company and Executive desire to amend certain provisions of the Existing
Agreement as provided herein.
NOW THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, the Company and Executive hereby agree as follows:
1. A new Section 11 is hereby added to the Existing Agreement. New Section 11 shall read:
11. Special Provision Regarding Section 409A of the Internal Revenue
Code. It is intended that this Agreement shall comply with Section 409A of
the Code (and any regulations and any guidelines issued thereunder) to the extent
the Agreement is subject thereto, and the Agreement shall be interpreted on a
basis consistent with such intent. If it is determined that an amendment of this
Agreement is necessary in order for it to comply with Section 409A, the parties
agree to negotiate in good faith to amend this Agreement in a manner that
preserves the original intent of the parties to the extent reasonably possible.
Notwithstanding any provision to the contrary in this Agreement, in the event that
any payments or benefits required to be provided by the Company hereunder are
deemed to constitute payments of “nonqualified deferred compensation” that is
subject to the requirements of Section 409A and if the Executive is deemed on the
Date of Termination to be a “specified employee” within the meaning of that term
under Section 409A(a)(2)(B) of the Code, then with regard to any payment or the
provisions of any benefit that is required to be delayed pursuant to Section
409A(a)(2)(B) of the Code, such payment or benefit shall not be made or provided
prior to the earlier of (i) the expiration of the six (6)-month period measured
from the date of his “separation from service” (As such term is defined in
Treasury Regulations issued under Section 409A) or (ii) the date of his
death (the “Delay Period”). Upon the expiration of the Delay Period, all payments
and benefits delayed pursuant to this Section 11 (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 the Executive 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.
Notwithstanding the foregoing, to the extent that the foregoing applies to the
provision of any ongoing welfare benefits to the Executive that would not be
required to be delayed if the premiums therefore were paid by the Executive, the
Executive shall pay the full costs of premiums for such welfare benefits during
the Delay Period and the Company shall pay the Executive an amount equal to the
amount of such premiums paid by the Executive during the Delay Period promptly
after its conclusion. The Executive shall be deemed to have a “termination of
employment” under this Agreement for purposes of entitling him to any
“nonqualified deferred compensation” that is subject to the requirements of
Section 409A only to the extent the Executive has a “separation from service,” as
that term is defined in Section 409A and the applicable Treasury regulations
applying all of the default rules thereunder.
2. Except as and to the extent amended hereby, the Existing Agreement is hereby ratified and
confirmed in all respects and remains in full force and effect in accordance with the terms
thereof. By signing below, the Company and Executive hereby (i) consent to all of the terms of
this Second Amendment, (ii) ratify and confirm their respective obligations under the Existing
Agreement, and (iii) agree that said obligations are and shall remain in full force and effect, as
amended by this Second Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this SECOND AMENDMENT TO AMENDED AND
RESTATED EMPLOYMENT effective as of the date first written above.
| BEAZER HOMES USA, INC. | ||||||
| By: | /s/ Xxx X. XxXxxxxx | |||||
| Name: | Xxx X. XxXxxxxx | |||||
| Title: | President and CEO | |||||
| EXECUTIVE | ||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
