FIRST AMENDMENT
TO
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
This First
Amendment to CHANGE OF CONTROL EMPLOYMENT AGREEMENT (this
“First Amendment” is made effective as of
December 31, 2008 (the “Effective Date”) by and
between BEAZER HOMES USA, INC., a Delaware corporation (the
“Company” ) and Allan P. Merrill, an individual
resident of the State of Georgia (the
“Executive”).
WHEREAS, the
Company and Executive have heretofore entered into an CHANGE OF
CONTROL EMPLOYMENT AGREEMENT made effective as of May 1, 2007
(the “Existing Agreement”); and
WHEREAS, the
Company and Executive desire to amend certain provisions of the
Existing Agreement as provided herein.
NOW THEREFORE, in
consideration of the premises and of the mutual covenants and
agreements herein contained, the Company and Executive hereby agree
as follows:
1. Section 2
of the Existing Agreement is hereby amended by adding the following
sentence at the end of the Section:
Notwithstanding
the foregoing, a Change of Control shall not be deemed to have
occurred unless it is also a “change in control event”
as described in Treasury Reg. Section 1.409A-3(i)(5) of the
Internal Revenue Code of 1986, as amended (the
“Code”).
2. Section 5(e)
of the Existing Agreement is hereby amended by adding the
underlined sentence at the end of the Section:
5(e) Date of
Termination. “Date of Termination” means
(i) if the Executive’s employment is terminated by the
Company for Cause, or by the Executive for Good Reason, the date of
receipt of the Notice of Termination or, subject to applicable cure
periods, any later date specified therein, as the case may be,
(ii) if the Executive’s employment is terminated by the
Company other than for Cause or Disability, the Date of Termination
shall be the date on which the Company notifies the Executive of
such termination and (iii) if the Executive’s employment
is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the
Disability Effective Date, as the case may be. The Executive
shall be deemed to have a “termination of employment”
under this Agreement for purposes of entitling him to any
“nonqualified deferred compensation” that is subject to
the requirements
of
Section 409A of the Code only to the extent the Executive has
a “separation from service,” as that term is defined in
Section 409A of the Code and the applicable Treasury
regulations applying all of the default rules
thereunder.
3. A new
Section 6(a)(v) is hereby added to the Existing Agreement. New
Section 6(a)(v) shall read:
6(a)(v)
Notwithstanding any provision to the contrary, in the event that
any payments or benefits required to be provided by the Company
under this Section 6(a) are deemed to constitute payments of
“nonqualified deferred compensation” that is subject to
the requirements of Section 409A of the Code and if the
Executive is deemed on the Date of Termination to be a
“specified employee” within the meaning of that term
under Section 409A(a)(2)(B) of the Code, then with regard to
any payment or the provision of any benefit that is required to be
delayed pursuant to Section 409A(a)(2)(B) of the Code, such
payment or benefit shall not be made or provided prior to the
earlier of (i) the expiration of the six (6)-month period
measured from the date of his “separation from service”
(as such term is defined in Treasury Regulations issued under
Section 409A of the Code), or (ii) the date of his death
(the “Delay Period”). Upon the expiration of the Delay
period, all payments and benefits delayed pursuant to this
Section 6(a)(v) (whether they would have otherwise been
payable in a single sum or in installments in the absence of such
delay) shall be paid or reimbursed to the Executive in a lump sum,
and any remaining payments and benefits due under this Agreement
shall be paid or provided in accordance with the normal payment
dates specified for them herein. Notwithstanding the foregoing, to
the extent that the foregoing applies to the provision of any
ongoing welfare benefits to the Executive that would not be
required to be d
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