Exhibit 10.4
SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT
DATED AS OF AUGUST 15, 2006
BETWEEN JOHN J. LEGERE AND GLOBAL
CROSSING LIMITED
WHEREAS, Global Crossing Limited
(the “ Company ”) and John J. Legere
(“Executive”) have previously entered into an
Employment Agreement dated as of August 15, 2006 (as amended
through June 24, 2008, the “Agreement”);
and
WHEREAS, by execution of this
amendment (the “ Amendment ”), the Company and
Executive wish to amend the Agreement to demonstrate compliance
with Section 409A of the Internal Revenue Code of 1986, as
amended, and applicable regulations (“ Section 409A
”) by including provisions that will (i) ensure that
compensation pursuant to the Agreement which is
not intended to be deferred compensation will
not inadvertently be treated as such under Section 409A,
(ii) otherwise permit all compensation payable under the
Agreement to qualify for all available exclusions, so that it will
be treated as compensation that does not involve the deferral of
compensation, and will therefore not be subject to
Section 409A, and compensation that continues to be treated as
providing for the deferral of compensation under Section 409A,
if any, is paid on a basis that complies fully with
Section 409A;
NOW, THEREFORE, the Agreement is
hereby amended, effective as of December 31, 2008, as
follows:
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1.
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Section 409A Compliance
.
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All provisions of this Amendment and
the Agreement are meant to be exempt from compliance with
Section 409A, to the maximum extent permitted, and otherwise
to comply with Section 409A. Accordingly, all provisions of this
Amendment and of the Agreement shall be construed in a manner
consistent with avoiding taxes or penalties under
Section 409A. Notwithstanding the foregoing, the Company does
not guarantee any particular tax treatment and the Company shall
have no liability with regard to any failure to comply with
Section 409A. Each payment which is required to be paid under
the Agreement upon termination of employment shall be deemed to be
a separate payment for purposes of Section 409A. In
determining the time for payment of any amounts
