Exhibit 10.38
SECOND AMENDMENT
TO THE
PRUDENTIAL SUPPLEMENTAL EMPLOYEE
SAVINGS PLAN
(Effective as of January 1,
2006)
Providing for Compliance with the
Final Rules
under Section 409A of the
Internal Revenue Code and Other Related Matters
Purpose and
Background:
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A.
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Pursuant to
Section 7.1(b) of the Prudential Supplemental Employee Savings
Plan (the “Plan”), the Senior Vice President for
Corporate Human Resources (“SVP”), or the successor to
his or her duties relating to corporate human resources has the
authority to amend the Plan on behalf of The Prudential Insurance
Company of America (“Prudential”) with respect to minor
changes that are necessary or advisable for purposes of compliance
with ERISA or other applicable laws or regulations, such as
Section 409A of the Internal Revenue Code of 1986, as amended
and the final guidance issues thereunder (together, “Section
409A”).
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B.
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Pursuant to
resolutions adopted by the Compensation Committee of Prudential in
September 2008, the SVP is authorized to delegate her authority to
amend the Plan for compliance with Section 409A and related
matters to Andrew Gregg, Vice President, Employee Benefits
(“Delegate”).
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C.
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The Delegate
has determined that the following amendment is within the scope of
authority granted to him with respect to amending the
Plan.
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D.
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Effective
January 1, 2009, (or as otherwise provided) Prudential desires
to amend the Plan to comply with the final regulations under
Section 409A and in certain related ministerial respects, all
as set forth below.
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Resolutions:
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1.
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Section 1.9 of the Plan is hereby amended
in its entirety to read as follows:
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“Earnings” shall have
the meaning set forth in PESP, except that Earnings for any
Eligible Employee classified by the Employer as a Global
Derivatives Financial Advisor (or under an equivalent successor
classification) shall not exceed $250,000; provided, however, that
the foregoing limit shall not apply to the Earnings of any Global
Derivatives Financial Advisor if, and to the extent that, such
Eligible Employee is compensated on a salary basis.
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2.
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Section 1.21 of the Plan shall be amended
by adding the following proviso to the end thereof:
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In no event shall any payment that
is required to be made to a Participant pursuant to Article V upon
a “Termination of Employment” be made to such
Participant unless such “Termination of Employment”
qualifies as a “separation from service” within the
meaning of Section 409A of the Code.
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3.
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Article I of
the Plan shall be further amended by adding the following new
sections to the end thereof:
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1.22 “Agent” means a
Prudential Representative or Special Agent, as such terms are
defined in The Prudential Merged Retirement Plan, as amended and
restated effective as of January 1, 2006.
1.23 “Non-Agent” means
any employment classification on the books and records of the
Employer other than an Agent.
1.24 “Section 409A”
means Section 409A of the Code and applicable guidance issued
thereunder.
1.25 “Status Date” means
the later of January 1, 2008, or the Participant’s
Employment Commencement Date, as such term is defined in
PESP.
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4.
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Article II of
the Plan shall be amended by adding the following new section to
the end thereof:
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2.4 Special Rule for Agents .
A Participant who receives pay
