FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.17
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This FIRST AMENDMENT to the Employment Agreement (the “Agreement”) entered into as of July 27,
2006 by and between (“Executive”) and THE ST. XXX COMPANY, a Florida
corporation (the “Company”), shall be effective as of January 1, 2008.
WHEREAS, the Company and the Executive previously entered into the Agreement in order to
establish the terms and conditions of the Executive’s employment with the Company;
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 Executive desire to amend the 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 Executive and the Company, intending to be legally bound, hereby amend the Agreement as
follows:
1. Section 4.2 of the Agreement shall be amended by revising the last sentence of Section 4.2
so that as amended, the last sentence of Section 4.2 shall read as follows:
“Each such Annual Bonus shall be paid not later than the 15th day of the third month of the
year following the Fiscal Period for which the Annual Bonus is awarded, unless the Executive
shall have timely elected to defer the receipt of such Annual Bonus pursuant to the terms
and conditions of a nonqualified deferred compensation plan maintained by the Company.”
2. Section 6.1(b) of the Agreement shall be amended so that as amended, Section 6.1(b) shall
read as follows:
“(b) if approved by the Compensation Committee, in their sole discretion, pay to the
Executive a pro rata portion of any Annual Bonus the Executive would have earned in that
Fiscal Period (based on the days covered by the Bonus Plan in that Fiscal Period divided by
the number of days in that Fiscal Period) as if he/she had been employed for the full Fiscal
Period, payable at the same time the Company pays other executives bonuses for that Fiscal
Period – i.e., between January 1 and March 15 of the year following the year for which the
Annual Bonus is payable; and”
3. The last paragraph of Section 6.1 of the Agreement shall be amended so that as amended, the
last paragraph of Section 6.1 shall read as follows:
“Anything in this Agreement to the contrary notwithstanding, if the Executive’s death or
Disability occurs during the Change of Control Period, the Executive or Executive’s family
shall be entitled to receive death or disability benefits at least equal to the most
favorable death or disability benefits provided by the Company and any of its Affiliates to
disabled executives or the surviving families of peer executives of the Company and
such Affiliates under such plans, programs, practices and policies relating to family
disability or death benefits, if any, as in effect with respect to other peer executives and
their families at any time during the 90-day period immediately preceding the Change of
Control or, if more favorable to the Executive and/or the Executive’s family, as in effect
on the date of the Executive’s death or Disability with respect to other peer executives of
the Company and its Affiliates and their families. For purposes of the preceding sentence,
the terms “death benefits” and “disability benefits” shall have the same meanings as
provided in §31.3121(v)(2)-1(b)(4)(iv)(C) of the U.S. Treasury Regulations, as modified,
however, by the U.S. Treasury Regulations for Section 409A of the Code, it being intended
that the amounts to which the Executive or the Executive’s family shall be entitled under
the preceding sentence shall not constitute “deferred compensation” subject to Code Section
409A.”
4. Section 6.4(a) of the Agreement shall be amended so that as amended, Section 6.4(a) shall
read as follows:
“(a) pay to the Executive, in a lump sum within 30 days of the Date of Termination, an amount
equal to 1.5 times the sum of the Executive’s Base Salary plus the Bonus Amount, provided,
however, that if Executive is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code as of the Date of Termination, then any such amounts payable
under this Section 6.4(a) shall be paid instead to the Executive 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
Executive’s death, and not before;”
5. Section 6.4(b) of the Agreement shall be amended so that as amended, Section 6.4(b) shall
read as follows:
“(b) pay to the Executive a pro rata portion of the Annual Bonus the Executive would have
earned in that Fiscal Period (based on the days covered by the Bonus Plan divided by the
number of days in that Fiscal Period) as if he/she had been employed for the full Fiscal
Period payable at the same time the Company pays other executive bonuses for that Fiscal
Period – i.e., between January 1 and March 15 of the year following the year for which the
Annual Bonus is payable, provided however, that if Executive is a “specified employee” within
the meaning of Section 409A(a)(2)(B)(i) of the Code as of the Date of Termination, then any
such amounts payable under this Section 6.4(b) shall in no event be paid any earlier than the
earlier of (x) the date which is six months following his Date of Termination and (y) the date
of the Executive’s death, and not before;”
6. Section 6.5(a) of the Agreement shall be amended so that as amended, Section 6.5(a) shall
read as follows:
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“(a) pay to the Executive, in a lump sum, on the date that is six months following his Date of
Termination, and not before, an amount equal to two times the sum of the Base Salary and the
Bonus Amount;”
7. Section 6.5(b) of the Agreement shall be amended so that as amended, Section 6.5(b) shall
read as follows:
“(b) pay to the Executive a pro rata portion of the Annual Bonus the Executive would have
earned in that Fiscal Period (based on the days covered by the Bonus Plan divided by the
number of days in that Fiscal Period) as if he/she had been employed for the full Fiscal
Period payable at the same time the Company pays other executive bonuses for that Fiscal
Period – i.e., between January 1 and March 15 of the year following the year for which the
Annual Bonus is payable, provided however, that if Executive is a “specified employee” within
the meaning of Section 409A(a)(2)(B)(i) of the Code as of the Date of Termination, then any
such amounts payable under this Section 6.5(b) shall in no event be paid any earlier than the
earlier of (x) the date which is six months following his Date of Termination and (y) the date
of the Executive’s death, and not before;”
8. Section 6.5(c) of the Agreement shall be amended so that as amended, Section 6.5(c) shall
read as follows:
“(c) pay to the Executive in a lump sum within 30 days of the Date of Termination, an amount
equal to the excess of (i) the actuarial equivalent of the benefit under the Company’s
qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial
assumptions no less favorable to the Executive than those in effect under the Retirement Plan
immediately prior to the commencement of the Change of Control Period) and any excess or
supplemental retirement plan in which the Executive participates (collectively, the “SERP”)
that the Executive would receive if the Executive’s employment continued for [three – Tier 1][two -Tier 2] years after
the Date of Termination, assuming for this purpose that (1) all accrued benefits are fully
vested, (2) that the Executive’s compensation in each of the [three – Tier 1][two -Tier 2]
years is that required by Sections 4.1 and 4.2, and (3) that the Executive is [three – Tier
1][two – Tier 2] years older than the Executive is on the Date of Termination, over (ii) the
actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the
Retirement Plan and the SERP as of the Date of Termination provided, however, that if
Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code
as of the Date of Termination, then any such amounts payable under this Section 6.5(c) shall
be paid instead to the Executive 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 Executive’s death, and not
before;”
9. Section 6.5(d) of the Agreement shall be amended so that as amended, Section 6.5(d) shall
read as follows:
“(d) continue benefits to the Executive or the Executive’s family from the Date of
Termination through the end of the Change of Control Period, or such longer period as any
plan, program, practice or policy may provide, at least equal to those which would
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have been
provided to them in accordance with the plans, programs, practices and policies described in
Sections 4.4 and 4.6 of this Agreement if the Executive’s employment had not been
terminated, in accordance with the most favorable plans, practices, programs or policies of
the Company and its Affiliates applicable to other peer
executives and their families during the 90-day period immediately preceding the Date of
Termination, or, if more favorable to the Executive, as in effect at any time thereafter
with respect to other peer executives of the Company and its Affiliates and their families.
For purposes of this Section 6.5(d) the term “benefits” shall mean and shall be limited to
the plans, programs, practices and policies described in Sections 4.4 and 4.6 of this
Agreement 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
Executive or the Executive’s family shall be entitled under this Section 6.5(d) 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 executive on an after-tax
basis.”;
10. Section 10.1 of the Agreement shall be amended by revising the second and last sentences
thereof to read as follows:
“The Company will attempt to minimize any Excise Tax, provided however, that no such
minimization attempts shall include any acceleration of any payments, and provided further
that if the Payment results in an Excise Tax and reducing the Payment eliminates the Excise
Tax, then the Executive agrees to reduce the Payment (by up to 10%) until it does not
trigger an Excise Tax. If any Excise tax would still exist after the aforementioned
reduction in Payment, then there shall be no reduction in the Payment.”
11. Section 10.2 of the Agreement shall be amended by deleting the following sentence from
said Section:
“The initial Gross Up Payment, if any, determined pursuant to this Section 10.2, shall be
paid to the Executive within five days of the receipt of the Accounting Firm’s
determination.”
12. Section 10.5 of the Agreement shall be amended so that as amended, Section 10.5 shall read
as follows:
“10.5 Payment of Gross-Up Payments. Notwithstanding any provision of this Agreement
to the contrary, any Gross-Up Payment due to the Executive under this Agreement shall not be
made until Executive has terminated his employment with the Company. Executive shall be
paid the initial Gross-Up Payment due to him under this Agreement, if any, in a single sum,
within five days after the later of (i) the receipt of the Accounting Firm’s determination,
or (ii) Executive’s Date of Termination; provided, however, that if Executive 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 Executive’s termination of
employment, if any, shall be paid instead to the Executive in a
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lump sum on the earlier of
(x) the date which is six months following his Date of Termination and (y) the date of the
Executive’s death, and not before. All Gross-Up Payments by the Company to Executive under
this Agreement shall be paid in any event no later than the last day of the Executive’s
taxable year following the taxable year in
which the Executive remits the taxes to which a payment to the Executive by the Company
relates.”
13. Section 10.6 of the Agreement shall be amended so that as amended, Section 10.6 shall read
as follows:
“10.6 Code Section 409A. For any amount hereunder, the determination of whether the
Executive 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. If the payment or distribution of any amount or benefit hereunder that is payable
over time must be delayed for six months by reason of the specified employee requirements,
the amount that would otherwise be payable during the six-month period immediately following
Executive’s Date of Termination will be accumulated and paid to Executive, without interest,
on the first day following the six-month anniversary of Executive’s termination of service,
whereupon the normal payment schedule will resume.
14. Section 13 of the Agreement shall be amended by adding a new Section 13.13:
13.13 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 30
days”) the actual date of payment within such period shall be determined by the Company in
its sole discretion.”
IN WITNESS WHEREOF, the Executive 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 | ||||||
Date: December ___, 2007
|
By: | |||||
| Xxxxx Xxxxxx | ||||||
| Vice President – Human Resources | ||||||
| EXECUTIVE | ||||||
Date: December ___, 2007 |
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| [print name] | ||||||
| [title] | ||||||
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