Exhibit 10.10.1
COST PLUS, INC.
AMENDMENT TO BARRY J.
FELD
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This amendment (the “
Amendment ”) is made by and between Barry J.
Feld (“ Executive ”) and
Cost Plus, Inc., a Delaware corporation (the “
Company ”, and together with Executive
collectively referred to as the “ Parties
”) on December 15, 2008.
W I T N E S S E T
H:
WHEREAS , the Parties previously entered into an Amended
and Restated Employment Agreement, dated December 15, 2008
(the “ Agreement ”); and
WHEREAS , the Company and Executive desire to amend
certain provisions of the Agreement in order to come into
documentary compliance with Section 409A of the Internal
Revenue Code of 1986, as amended (the “
Code ”), and the final regulations and official
guidance promulgated thereunder (together, “ Section
409A ”), as set forth below.
NOW, THEREFORE
, for good and valuable
consideration, Executive and the Company agree that the Agreement
is hereby amended as follows:
1. Non-competition .
Section 3(d) of the Agreement entitled “Limitation on
Severance Payments and Benefits” shall be deleted in its
entirety and no longer shall be in effect.
2. Definition of Involuntary
Termination . The following sentence shall be added to
Section 7(b)(v) immediately following the last sentence of
Section 7(b)(v):
“Notwithstanding the
foregoing, any employment termination will not constitute an
Involuntary Termination unless such employment termination occurs
within twelve (12) months following the initial existence of
the Involuntary Termination condition.”
3. Section 409A .
Section 21 of the Agreement entitled
“Section 409A” shall be amended and restated in
its entirety as follows:
“(a) Section 409A
.
(i) Notwithstanding anything to the
contrary in this Agreement, no severance payments or benefits
payable to Mr. Feld, if any, pursuant to this Agreement that,
when considered together with any other severance payments or
separation benefits that are considered deferred compensation under
Section 409A of the Code and any final regulations and
official guidance promulgated thereunder (together, “Section
409A”) (such payments and benefits together, referred to as
the “Deferred Payments”) will be payable until
Mr. Feld has a
“separation from
service” within the meaning of Section 409A. Similarly,
no severance payable to Mr. Feld, if any, pursuant to this
Agreement that otherwise would be exempt from Section 409A
pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be
payable until Mr. Feld has a “separation from
service” within the meaning of Section 409A.
(ii) Further, if Mr. Feld is a
“specified employee” within the meaning of
Section 409A at the time of Mr. Feld’s separation
from service, then any Deferred Payments that otherwise are payable
within the six (6) months following Mr. Feld’s
separation from service will become payable on the first payroll
date that occurs on or after the date six (6) months and one
(1) day following the date of Mr. Feld’s
