Exhibit 10.49
NETGEAR, INC.
AMENDMENT TO EMPLOYMENT
AGREEMENT
This amendment (the “
Amendment ”) is made by and between Michael F.
Falcon (the “ Executive ”) and NETGEAR,
Inc. (the “ Company ” and together with
the Executive hereinafter collectively referred to as the “
Parties ”) on
December 29, 2008.
W
I T N
E S S E T
H:
WHEREAS , the Parties previously entered into an
employment agreement, dated November 4, 2002 (the “
Agreement ”); and
WHEREAS , the Parties wish to amend the Agreement, and
bring certain terms into documentary compliance with
Section 409A of the Internal Revenue Code and the final
regulations and other official guidance thereunder (“
Section 409A ”) so as to avoid the imposition
of any additional tax under 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. Bonus . Section 3(b)
of the Agreement is hereby amended to add the following new
sentence to the end thereof:
“Executive’s annual
bonus will be paid no later than March 15
th
of the year
following the year in which Executive’s annual bonus was
earned.”
2. Release and Timing of
Payments . Section 6 of the Agreement in hereby amended to
add a new sub-section (b) thereunder as follows:
“(b) Timing of Release
. The receipt of any severance benefits pursuant to
Section 6(a) will be subject to Executive signing and not
revoking a standard release of claims agreement (the
“Release”), and provided that such Release is effective
within 60 days following the termination of employment or such
earlier period as required by the Release. To become effective, the
Release must be executed by the Executive and any revocation
periods (as required by statute, regulation, or otherwise) must
have expired without the Executive having revoked the Release. In
addition, no severance will be paid or provided until the Release
actually becomes effective.”
3. Code Section 409A . A
new Section 21 is hereby added with the following:
“21. Code
Section 409A .
(a) Notwithstanding anything to the
contrary in this Agreement, no Deferred Payments (as defined below)
shall be payable until Executive has a “separation from
service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”)
and the final regulations and official guidance thereunder
(together, “Section 409A”). Similarly, no severance
payable to Executive, if any, pursuant to this Agreement that would
otherwise be exempt from Section 409A pursuant to Treasury
Regulation Section 1.409A-1(b)(9) shall be payable until
Executive has a “separation from service” within the
meaning of Section 409A.
(b) Any severance
payments or benefits under this Agreement that would be considered
Deferred Payments will be paid on, or, in the case of installments,
will not commence until, the 60 th day following Executive’s
separation from service, or, if later, such time as required by
Section 21(c). Any installment payments that would have been
made to Executive during the 60 day period immediately following
Executive’s separation from service but for the preceding
sentence will be paid to Executive on the 60
th
day following the
Executive’s separation from service and the remaining
payments shall be made as provided in this Agreement.
(c) Further, if Executive is a
“specified employee” within the meaning of
Section 409A at the time of Executive’s separation from
service (other than due to death), and the severance payments and
benefits payable to Executive, if any, pursuant to the Agreement,
when considered together with any other severance payments or
separation benefits, are considered deferred compensation under
Section 409A (together, the “Deferred Payments”),
such Deferred Payments that are otherwise payable within the first
6 months following Executive’s separation from service will
become payable on the first payroll date that occurs on or after
the date 6 months and 1 day following the date of Executive’s
separation from service. All subsequent Deferred Payments, if any,
will be payable in
