Exhibit 10.30
Amendment to
Employment Agreement
This Amendment is made, entered into, and is effective as of the
Amendment Date, by and between the Company and Executive.
Article 1.
Definitions
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1.0
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Unless otherwise defined herein, the terms used herein shall
have the meanings ascribed to them in Article 2 of the Employment
Agreement.
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1.1
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“Amendment” shall mean this Amendment to the
Employment Agreement.
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1.2
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“Amendment Date” shall mean February 15, 2008.
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1.3
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“Employment Agreement” shall mean that certain
agreement entered into by and between the Company and the Executive
as of May 28, 2004, as subsequently amended on February 15, 2006,
and which subsequently thereto was filed by the Company with the
Securities and Exchange Commission.
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Article 2.
Amendments
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2.0
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The Employment Agreement is hereby amended, as of the Amendment
Date, as set forth in Section 2.1.
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2.1
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Section 7.4(e) of the Employment Agreement is rewritten to read
in its entirety as follows:
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(e) Payment of all but
forty thousand dollars ($40,000) of the benefits described in
Section 7.4(b)(1), and payment of all of the benefits described in
Section 7.4(b)(2) shall be paid in cash to the Executive in equal
bi-weekly installments over a period of consecutive months equal to
the Service Multiple times twelve (12) and beginning on the
fifteenth day of the month following the month in which the
Effective Date of Termination occurs, subject to the provisions of
Section 9.1. The forty thousand dollars ($40,000) which was
withheld shall be paid in cash to the Executive in a single lump
sum at the end of the twelve (12) month restrictive period set
forth in Sections 13.2 (as so renumbered) and 13.3 (as so
renumbered) of this Agreement.
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2.2
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Section 7.4(f) of the Employment Agreement is deleted and
Sections 7.4(g), (h), and (i) are renumbered as Sections 7.4(f),
(g), and (h), respectively.
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2.3
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Section 7.4(f) (as so renumbered) is rewritten to read in its
entirety as follows:
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(f) Except as specifically
provided in Section 7.4(e), all other payments due to the Executive
upon termination of employment shall be paid in accordance with the
terms of such applicable plans or programs.
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2.4
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Section 7.6(g) of the Employment Agreement is rewritten to read
in its entirety as follows:
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(g) Payment of all but forty thousand dollars
($40,000) of the benefits described in Section 7.6(d)(1) and
payment of all of the benefits described in Section 7.6(d)(2) shall
be paid in cash to the Executive in equal bi-weekly installments
over a period of consecutive months equal to the Service Multiple
times twelve (12) and beginning on the fifteenth day of the month
following the month in which the Effective Date of Termination
occurs, subject to the provisions of Section 9.1. The forty
thousand dollars ($40,000) which was withheld shall be paid in cash
to the Executive in a single lump sum at the end of the twelve (12)
month restrictive period set forth in Sections 13.2 (as so
renumbered) and 13.3 (as so renumbered) of this Agreement.
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2.5
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Section 8.4 of the Employment Agreement is rewritten to read in
its entirety as follows:
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8.4 Form and Timing of Severance
Benefit . Payment of all of the benefits described in Sections
8.3(a) through (c) shall be paid in cash to the Executive in a
single lump sum as soon as practicable following the Effective Date
of Termination, subject to the provisions of Section 9.1. All other
payments due to the Executive upon termination of employment shall
be paid in accordance with the terms of such applicable plans or
programs.
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2.6
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The following new Articles 9 and 10 are added immediately
following Section 8.5, and all subsequent articles and section
references in the Agreement are adjusted accordingly:
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Article 9.
Compliance with IRC Section 409A.
9.1
(a) The following rules shall
apply with respect to distribution of the payments and benefits, if
any, to be provided to the Executive under Articles 7 or 8, as
applicable:
(i)
It is intended that each installment of the payments and benefits
provided under Articles 7 or 8 shall be treated as a separate
“payment” for purposes of Section 409A of the Code and
the guidance issued thereunder (“Section 409A”).
Neither the Company nor the Executive shall have the right to
accelerate or defer the delivery of any such payments or benefits
except to the extent specifically permitted or required by Section
409A.
(ii)
If, as of the date of the “separation from service” of
the Executive from the Company (determined as set forth below), the
Executive is not a “specified employee” (within the
meaning of Section 409A), then each installment of the payments and
benefits shall be made on the dates and terms set forth in Articles
7 or 8, as applicable.
(iii)
If, as of the date of the “separation from service” of
the Executive from the Company, the Executive is a “specified
employee” (within the meaning of Section 409A), then:
(1)
Each installment of the payments and benefits due under Articles 7
or 8, as applicable, that, in accordance with the dates and terms
set forth herein, will in all circumstances, regardless of when the
separation from service occurs, be paid within the Short-Term
Deferral Period (as hereinafter defined) shall be treated as a
short-term deferral within the meaning of Treasury Regulation
§ 1.409A-1(b)(4) to the maximum extent permissible under
Section 409A. For purposes of this Agreement, the “Short-Term
Deferral Period” means the period ending on the later of the
15 th day of the third month following the end of the
Executive’s tax year in which the separation from service
occurs and the 15 th day of the third month following
the end of the Company’s tax year in which the separation
from service occurs; and
(2)
Each installment of the payments and benefits due under Articles 7
or 8 that is not described in cl
