Exhibit 10.6
AMENDMENT NO. 1 TO LETTER
AGREEMENT OF EMPLOYMENT
Amendment (this “
Amendment ”), made as of this December 22, 2006, by
and among Lerner New York, Inc. (the “ Company
”) and Robert Luzzi (“ Executive
”).
R E C I T A L S
WHEREAS, Executive is party to that
certain Letter Agreement of Employment between the Company and
Executive dated March 13, 2006 (the “ Agreement
”).
WHEREAS, the Company and Executive
wish to amend the Agreement in order to clarify treatment of
certain payments under the Agreement in order to make them
compliant with Section 409A of the Internal Revenue Code of 1986,
as amended.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to the following:
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1.
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Amendment.
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(a)
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The current Section 7 of the Agreement
will be renumbered Section 7.1 .
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(b)
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A new Section 7.2 shall be added to the
Agreement immediately following Section 7.1 as follows:
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“ Severance Pay of Key Employee .
If on the date of your termination of employment by the Company:
(i) a distribution of compensation to which you become entitled
under this Agreement upon your termination of employment (including
but not limited to severance or other termination benefits) would
be “nonqualified deferred compensation” within the
meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the Treasury Regulations
issued thereunder, including Proposed Regulation Section
1.409A-1(b)(9)(iii) (or any successor provision), which describes
certain separation pay arrangements that do not provide for
the deferral of compensation, and (ii) you are a “key
employee”, as defined in Code Section 416(i) without regard
to paragraph (5) thereof, then such distribution shall not be made
before the date which is six months after the date of
you
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