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Amendment To Amended And Restated Employment Agreement

Employment Agreement Amendment

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 This Employment Agreement Amendment involves

PHIBRO ANIMAL HEALTH CORP | Phibro Animal Health Corporation

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Title: AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Governing Law: New Jersey     Date: 8/29/2016
Industry: Biotechnology and Drugs     Sector: Healthcare

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Exhibit 10.35

 

Execution Version

 

AMENDMENT TO AMENDED AND

RESTATED EMPLOYMENT AGREEMENT

 

This AMENDMENT TO THE AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “ Amendment ”) is made as of May 31, 2016 by Phibro Animal Health Corporation , a Delaware corporation (the “ Company ”) and Gerald K. Carlson (the “ Employee ”).

 

WITNESSETH.

 

WHEREAS, the Company and the Employee entered into that certain Amended and Restated Employment Agreement, dated as of March 27, 2014 (the “ Employment Agreement ”); and

 

WHEREAS, the parties hereto desire to amend the Employment Agreement as set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.

Section 5 of the Employment Agreement is amended by adding the following Section 5(e) to the end thereof:

 

(e)   RETIREE MEDICAL .  The parties acknowledge that upon termination of employment, Employee (and his eligible spouse) would be eligible for benefits under the Company’s Retirement Health Care Plan (“Retiree Health Plan”) as such Retiree Health Plan may be amended from time to time by the Company.  Inasmuch as the Employee and his spouse desire to waive all rights to future benefits under the Retiree Health Plan, and, in lieu thereof, for Employee to receive a cash payment upon Employee’s retirement from the Company, the parties have agreed that as consideration for Employee’s waiver of any and all future benefits under the Retiree Health Plan, which waiver shall be consented to by his spouse, the Company agrees that upon Employee’s retirement from the Company, he shall be paid a lump sum cash payment in the amount of $350,000.00; such cash payment shall be paid as soon as practicable after the execution and delivery of the general release and the spousal release described in section 8 of this Agreement, but in no event later than March 15th of the calendar year following the year in which his severance from service occurs.  

 

2.

Section 7(d) of the Employment Agreement is hereby amended by added the following Section 7(d)(vi) before the last paragraph of Section 7(d):

 

“(vi)        a lump sum payment of an amount equal to onethird (1/3) of Employee’s annual Base Salary, provided that such termination must occur prior to December 31, 2016 and, in such event, such payment shall be paid as soon as practicable after the execution and delivery of the general release described in section 8 of this Agreement by Employee, but in no event later than March 15, 2017.”

 

 

 

 

3.

Section 8 of the Employment Agreement is hereby deleted in its entirety and replaced with the following:

 

8.          RELEASE .  Any and all amounts payable and benefits or additional rights provided pursuant to this Agreement beyond the Accrued Benefits shall only be payable if the Employee delivers to the Company and does not revoke a general release of claims in favor of the Company reasonably satisfactory to the Company substantially in the form attached hereto as Exhibit A .  Such release shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination.  Any and all amounts payable pursuant to Section 5(e) of this Agreement shall only be payable if the Employee’s spouse delivers to the Company and does not revoke the Spousal Consent set forth as Exhibit B to this Agreement, which Spousal Consent shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. In no event however, may the Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a “deferral of compensation” within the meaning of Section 409A.  In addition, to the extent payments under this Agreement that are contingent on the Employee’s execution of the Release described in this paragraph constitute deferred compensation for purposes of Section 409A and the Release’s execution period shall commence in one tax year and end in the subsequent tax year, the payments under this Agreement shall be made solely in the subsequent tax year.

 

4.

Section 23(b)(i) of the Employment Agreement is hereby deleted in its entirety and replaced with the following:

 

(b)

SECTION 409A COMPLIANCE.

 

(i)

The intent of the parties is that payments and benefits under this Agreement shall, (i) to the extent possible, be exempt from the restrictions of Internal Revenue Code Section 409A and the regulations and guidance promulgated thereunder (collectively “ Code Section 409A ”) or, (ii) to the extent no exemption from Code Section 409A is available or satisfied, then to comply with that Code Section, and, with respect to (i) or (ii), to the maximum extent permitted, this Agreement shall be interpreted to be either exempt from Code Section 409A as available or to be in compliance therewith.  To the extent that any provision hereof is modified in order to be exempt from or to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Employee and the Company of the applicable provision without violating the provisions of Code Section 409A.  In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Employee by Code Section 409A or damages for failing to comply with Code Section 409A.

 

 

 

5.

Exhibit A to the Employment Agreement is hereby deleted in its entirety and replaced with Exhibit A to this Amendment.

 

6.

The Employment Agreement is hereby amended by the addition of Exhibit B hereto as Exhibit B to the Employment Agreement.  

 

7.

Except as specifically set forth herein, the Employment Agreement and all of its terms and conditions remain in full force and effect, and the Employment Agreement is hereby ratified and confirmed in all respects, except that on or after the date of this Amendment all references in the Employment Agreement to “this Agreement,” “hereto,” “hereof,” “hereunder,” or words of like import shall mean the Employment Agreement as amended by this Amendment.  Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Employment Agreement.

 

8.

This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and such counterpart together shall constitute one and the same instrument.

 

9.

This Amendment, including the validity, interpretation, construction and performance of this Amendment, shall be governed by and construed in accordance with the laws of the State of New Jersey applicable to agreements made and to be performed in such State, without regard to such State’s conflicts of law principles.

 

10.

This Amendment shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto. The Employment Agreement, as amended by this Amendment, embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof.

 

[remainder of page intentionally left blank; signature page follows]

 

 

 

SIGNATURE PAGE TO AMENDMENT TO THE AMENDED

AND RESTATED EMPLOYMENT AGREEMENT

 

IN WITNESS WHEREOF , the parties hereto have executed this Amendment as of the date first written above.

 

 

PHIBRO ANIMAL HEALTH CORPORATION

 

 

 

By: 

/s/ Jack C. Bendheim

 

 

Name: Jack C. Bendheim

 

 

Title:   Chairman and Chief Executive Officer

 

 

 

EMPLOYEE

 

 

 

/s/Gerald K. Carlson

 

Gerald K. Carlson

 

 

 

 

EXHIBIT A

 

GENERAL RELEASE

 

I, ________________________, in consideration of and subject to the performance by Phibro Animal Health Corporation (together with its subsidiaries, the “ Company ”), of its obligations under the Employment Agreement dated as of March 27, 2014, as amended on May 31, 2016 (the “ Agreement ”), do hereby release and forever discharge as of the date hereof the Company and its respective affiliates and all present, former and future managers, directors, officers, employees, successors and assigns of the Company and its affiliates and direct or indirect owners (collectively, the “ Released Parties ”) to the extent provided below (this “ General Release ”).  The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder.  Terms used he


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