Exhibit
10(au)
CENTERLINE HOLDING
COMPANY
EXECUTIVE EMPLOYMENT
AGREEMENT
WITH DONALD J.
MEYER
___________________________________________
2009 Technical Amendment for
Compliance
with Section 409A of the Internal
Revenue Code
___________________________________________
WHEREAS , Centerline Capital Group Inc. (“
Company ”) and Donald J. Meyer (“
Executive ”) entered an Executive Employment Agreement
dated January 1, 2007 (as amended by a letter agreement dated as of
April 15, 2007 (the “ Letter Agreement ”)
between Executive and the Company, the “ Agreemen
t”); and
WHEREAS , the undersigned parties have agreed that the
Agreement should be amended to provide for a modification to
Executives base salary and the
WHEREAS , Section 409A of the Internal Revenue Code of
1986, as amended (the Code ”) imposes a 20% tax plus
interest and other penalties on employees who collect compensation,
severance pay, or reimbursements pursuant to employment agreements
that do not conform with the specific time of payment provisions
required under Code Section 409A; and
WHEREAS, the undersigned parties to the Agreement have
mutually agreed that the Agreement should be amended, effective
January 1, 2009, to comply with Code Section 409A and the final
regulations that become effective on such date.
NOW, THEREFORE , the Company and Executive, acknowledging due
and adequate consideration for this 2009 Technical Amendment for
Compliance with Section 409A of the Internal Revenue Code (the
“ Amendment ”), do hereby agree as
follows:
1. Everywhere
in the Agreement, the Company’s former name,
“CharterMac Capital LLC,” shall be replaced with
“Centerline Affordable Housing Advisors LLC.”
and “CharterMac,” shall be replaced with
“Centerline Holding Company.”
2. Everywhere
in the Agreement, the phrases “termination of
Executive’s employment,” “termination,”
“termination of the Executive” or “end of
his employment” shall mean Executive’s
“separation from service” (as defined under Treasury
Regulation § 1.409A-1(h) and any successor thereto) with the
Company or any affiliate. Pursuant to such Treasury
Regulation and for purposes of this paragraph:
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The term
“affiliate” shall have the meaning set forth under Code
Sections 414(b) and (c), provided that fifty (50) percent shall
replace eighty (80) percent each place it appears (i) in Code
Section 1563(a)(1), (2) and (3) for purposes of Code Section
414(b), and (ii) in Treasury Regulation § 1.414(c)-2 for
purposes of Code Section 414(c).
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A
“separation from service” will be deemed to occur if
the Company and Executive reasonably anticipate that Executive
shall perform no further services for the Company (whether as an
employee or an independent contractor) or that the level of bona
fide services Executive will perform in the future (whether as an
employee or an independent contractor) will permanently decrease to
no more than twenty (20) percent of the average level of bona fide
services performed (whether as an employee or independent
contractor) over the immediately preceding 36-month
period.
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If Executive is
on an authorized, bona fide leave of absence, Executive shall
experience a “separation from service” on the first day
of the seventh (7th) month of such leave, unless Executive’s
right to reemployment with the Company is provided either by
statute or contract. A leave of absence constitutes a
bona fide leave of absence only if there is a reasonable
expectation that Executive will return to perform services for the
Company or any of its Affiliates. For purposes of the
36-month period described above, (a) if Executive is on a paid bona
fide leave of absence, Executive is treated as providing bona fide
services at a level of services equal to that which Executive would
have been required to perform to receive the compensation paid
during the leave of absence, a
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