AMENDMENT TO EMPLOYMENT AGREEMENT BETWEEN XXXXXXX X. XXXXXX AND AMBASE
CORPORATION DATED EFFECTIVE JANUARY 1, 2008
THIS AMENDMENT is entered into this 31st day of December 2007 by and
between Xxxxxxx X. Xxxxxx (the "Executive") and AmBase Corporation, a Delaware
corporation (the "Company").
WHEREAS, the Company and the Executive entered into an employment agreement
dated March 30, 2006 (the "Employment Agreement") pursuant to which the
Executive was employed by the Company as Chairman, President and Chief Executive
Officer; and
WHEREAS, Section 409A of the Internal Revenue Code ("Code"), effective
January 1, 2005, requires deferred compensation arrangements, including those
set forth in employment agreements, to comply with its provisions and
restrictions and limitations on payments of deferred compensation; and
WHEREAS, the final regulations issued pursuant to Code section 409A,
effective April 17, 2007 and applicable as of January 1, 2009, necessitate
changes to the Employment Agreement; and
WHEREAS, the parties hereto desire by this writing to amend the Employment
Agreement to incorporate the changes required by Code section 409A and the final
regulations.
NOW, THEREFORE, it is AGREED that the Employment Agreement shall be amended
effective January 1, 2008 as follows:
1. The following two sentences are added to the end of Section 4:
The Company shall reimburse Executive no later than the end of the year
following the year in which any such expense is incurred. The amount of
Executive's expenses eligible for reimbursement during any taxable year will not
affect the expenses eligible for reimbursement in any other taxable year.
2. Section 5(b) is deleted in its entirety and replaced with the following:
(b) In the event the Company shall terminate Executive's employment
hereunder for any reason other than those permitted in paragraph (a) of this
Section 5, Executive shall be entitled to a lump-sum amount equal to the salary
payments provided for in Section 2 hereof for the remaining term of the
Employment Period. Executive shall not be under any duty to seek alternative
employment or otherwise mitigate his damages as a condition to the receipt of
such amount. If Section 16 applies, said payment is to be deferred for the
6-month period immediately following the termination of Executive's employment
with the Company. If section 16 does not apply, said payment is to be paid
within the 30-day period immediately following the termination of Executive's
employment with the Company.
3. Section 7 is amended by adding the following at the end:
If section 16 applies, payments to which the Executive would otherwise be
entitled, pursuant to the Section 7, during the first six months following the
date on which Company terminates this Agreement will be deferred for the 6-month
period immediately following the termination of Executive's employment with the
Company, and paid within the 30 day period following the date that is six months
after the date of termination of this Agreement. Any further amounts payable to
Executive thereafter accruing will be paid on their scheduled payment dates. In
addition, in the event the disability benefits pursuant to this Section 7 are
deferred pursuant to Section 16, the Company agrees to pay to Executive, as of
the date it makes the deferred payments, simple interest on each deferred amount
at the then applicable Federal rate provided for in Code Section 7872(f)(2)(A),
based on the number of days the payment was deferred from the original
semi-monthly pay date until the date of actual payment.
4. The following new section 16 is added to the end thereof:
Notwithstanding anything in this Agreement to the contrary, if the
Executive is a "specified employee" within the meaning of Code section
409A(a)(2)(B)(i) and Treasury Regulation section 1.409A-1(i) at the time he
becomes entitled to any payments on account of a separation from service, no
amounts shall be paid before the date that is six months from the date of the
Executive's separation from service (or, if earlier than the end of the
six-month period, the date of Executive's death).
All defined terms used without definitions shall have the meanings provided
in the Employment Agreement.
Except as herein amended, all other terms and conditions of the Employment
Agreement shall remain the same and the Employment Agreement as herein amended
shall remain in full force and effect.
IN WITNESS WHEREOF, the Employment Agreement is hereby amended effective as
of January 1, 2008.
Accepted and Agreed:
AmBase Corporation
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------ ----------------------------------
Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Vice President &
Chief Financial Officer
