Exhibit 10.7
SECOND AMENDMENT
TO
AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
WHEREAS, The Hershey Company (the
“Company”) has entered into an Amended and Restated
Executive Employment Agreement (the “Agreement”) dated
as of October 2, 2007 with David J. West (the
“Executive”), which has been amended by the First
Amendment dated as of February 13, 2008; and
WHEREAS, the parties desire to
further amend the Agreement to make certain changes relating to
Section 409A of the Internal Revenue Code and the regulations
and guidance promulgated thereunder.
NOW, THEREFORE, BE IT RESOLVED that,
the Agreement is further amended by this Second Amendment,
effective as of December 29, 2008, as follows:
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1.
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Section 3(g)
is amended by deleting the words “within one hundred twenty
(120) days of such termination, a lump sum cash payment equal
to the lump sum cash” and substituting therefor “at the
same time and in the same form as the”.
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2.
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Section 3(j)
is amended by deleting the word “prompt” and
substituting therefor “within the time period set forth in
Section 16(c)” and by deleting the word
“promptly” and substituting therefore “within the
time period set forth in Section 16(c).
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3.
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Sections 5(a)(iv) and (v),
5(b)(v) and (vi), and 5(c) are each amended to change all
references of “promptly” to “on the first
business day following the fifty-ninth (59 th ) day.”
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4.
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Section 5(d)(i)
shall be amended to read as follows:
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(i)
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The
Employer shall pay to the Executive:
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(A) the Accrued
Obligations;
(B) on the first business day
following the fifty-ninth day following the Date of Termination,
subject to the provisions of Section 16(b) hereof, an amount
equal to two times the sum of (I) the Executive’s annual
Base Salary at the rate in effect at the time the Notice of
Termination is given, or in effect immediately prior to any
reduction thereof in violation of the Agreement, and (II) the AIP
bonus at target for the year in which such termination occurs;
and
(C) except to the extent that the
Executive’s AIP award for this period would have otherwise
been subject to an effective deferral election under the Deferred
Compensation Plan in which case the payment is made in accordance
with the deferral election, at the time the AIP bonus would be paid
to Executive in the following calendar year if he continued
employment, a pro rata AIP bonus for the year of termination based
on actual results for such year and the period of employment during
such year.
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5.
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The
last sentence of Section 5 (flush language), is deleted, and
the following two paragraphs are added at the end of
Section 5:
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“(e) Severance Conditioned
on Covenants . Notwithstanding the foregoing, the
Company’s obligations to pay or provide any benefits under
Section 5(d) shall cease as of the date the Executive
knowingly and materially violates the provisions of
Section 11(a), 11(b) or 11(c) hereof.
(f) Severance
Conditioned on Release . Notwithstanding the foregoing, the
Company’s obligations to pay or provide any benefits under
Section 5(d) shall be conditioned on the Executive signing a
release of claims in favor of the Company in the form annexed
hereto and not revoking such release during the 7 day revocation
period, both of which occur within sixty (60) days after
Executive’s termination. Such amounts shall be due and
payable to (or begin to be payable) to the Executive on the first
business day following the fifty-ninth (59 th ) day following the Date
of Termination (with any missed installment payments paid in a lump
sum on such date).”
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6.
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Section 6
is hereby replaced with the following provision:
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“(a) The Executive shall
participate in the Executive Benefits Protection Plan (Group 3A)
(the “EBPP”), but all payout thereunder shall be
subject to Section 16 hereof and this
Section 6.
“(b) If there occurs a
termination of employment following a “change in
control” as defined in the EBPP (an “EBPP Change in
Control”), and it is also
