AMENDMENT TO THE ELIP SPLIT DOLLAR LIFE INSURANCE AGREEMENT (ENDORSEMENT METHOD
Exhibit
10.76
AMENDMENT
TO THE
ELIP
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
(ENDORSEMENT
METHOD
AMENDMENT
(the “Amendment”)
to
Executive Life Insurance Plan Split Dollar Life Insurance Agreement (Endorsement
Method) (the “Agreement”),
dated
as of July 14, 2003 by and between Xxxxxx Dodge Corporation, a New York
corporation (the “Corporation”),
and
certain individuals as designated by the Corporation, in its sole discretion,
for participation in the Executive Life Insurance Plan (the “Participants”),
dated
as of March 5, 2007. Terms used without definition herein shall have the
respective meanings set forth in the Agreement.
WHEREAS,
the Corporation adopted a revised Executive Life Insurance Plan, effective
January 1, 2003 (the “Plan”),
which
is the current version of the Plan;
WHEREAS,
some Participants in the Plan have life insurance policies issued pursuant
to
the Plan;
WHEREAS,
Section 409A of the U.S. Internal Revenue Code (“Section
409A”)
became
effective as of January 1, 2005;
WHEREAS,
guidance issued by the U.S. Internal Revenue Service permits service providers
to amend their employee benefit plans (such as the Plan and the Agreement)
to
bring them into documentary compliance with Section 409A, including amendments
which avoid the application of Section 409A;
WHEREAS,
the Corporation has been performing its obligations under the Agreement in
good
faith compliance with Section 409A;
WHEREAS,
the Corporation’s board of directors, by resolution dated November 18, 2006 (the
“Resolution”), authorized certain officers of the Corporation, in the name and
on behalf of the Corporation, to amend the Corporation’s employee benefit plans
or similar arrangements as are necessary and appropriate to comply with Section
409A; and
WHEREAS,
an authorized officer, in the name and on behalf of the Corporation, has
determined that it is necessary or desirable to amend the Agreement to bring
it
into documentary compliance with Section 409A and related Internal Revenue
Service guidance and proposed regulations.
AMENDMENT
NOW,
THEREFORE, the Agreement is hereby amended as follows:
| 1. |
This
Amendment shall be effective as of January 1, 2005.
|
| 2. |
Subsection
(a) of Section 9 of the Agreement is hereby amended by inserting
the
following language at the end of such subsection:
|
“Any
transfer of the Policy to the Participant pursuant to this Section 9(a) shall
be
made ten business days after the Participant’s termination date, except that if
(i) the Participant is a “specified employee” within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”), (ii) such
Participant’s employment is terminated other than on account of his death and
(iii) such termination occurs on or after March 1 of the calendar year following
the calendar year in which first of the following events shall have occurred:
(x) a Change of Control, (y) the Participant has qualified for Retirement and
(z) the Participant has incurred a Disability then such transfer of the Policy
shall be made on the first business day after the six month anniversary of
the
Participant’s termination date.”
| 3. |
The
Agreement is hereby amended to add as new Section 17 (and existing
Section
17 of the Agreement is hereby renumbered as Section 18 accordingly):
|
“SECTION
409A: The Corporation and the Participants acknowledge and agree that any and
all payments and transfers made under this Agreement are intended to comply
with
the applicable requirements of Section 409A of the Code and the regulations
and
guidance of the Department of the Treasury interpreting and implementing Section
409A.”
| 4. |
The
remaining provisions of the Agreement shall remain in full force
and
effect.
|
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IN
WITNESS WHEREOF, the Corporation has duly executed this Amendment by its
authorized representative and the Participant has hereunto set «Gender»
hand, in
each case as of the date of this Amendment.
XXXXXX
DODGE CORPORATION
By:__/s/
Xxxxx X. Mailhot_________________________
Name:
Xxxxx X. Xxxxxxx
Title: Senior Vice President-
Human
Resources
PARTICIPANT:
_________________________
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