Exhibit 10.39
Amendment to Superseding Employment,
Separation and General Release Agreement
Amendment to
Superseding Employment, Separation and General Release Agreement
(this “Amendment”), dated as of December 30, 2008,
by and between Scientific Games International, Inc., a
Delaware corporation (the “Company”), and William J.
Huntley (“Executive”).
WHEREAS, Executive has been employed
pursuant to an Employment Agreement dated as of August 1, 2006
by and between the Company and Executive (the “Original
Agreement”), as amended by the Superseding Employment,
Separation and General Release Agreement dated as of July 1,
2008 (the “Superseding Agreement” and, together with
the Original Agreement, the “Employment Agreement”);
and
WHEREAS, the Company and Executive
desire to amend the Employment Agreement as set forth herein to
bring the Employment Agreement into compliance with
Section 409A of the Internal Revenue Code of 1986 and the
regulations and Treasury guidance thereunder; and
WHEREAS, the amendments contemplated
hereby are intended to bring the timing of, and certain procedural
aspects with respect to, certain payments under the Employment
Agreement into compliance with Section 409A but not to
otherwise affect Executive’s right to such
payments.
NOW THEREFORE, in consideration of
the premises and the mutual benefits to be derived herefrom and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Section 4(g) of the
Original Agreement is hereby amended by adding the following three
sentences at the end thereof:
“To the extent any payments of
money or other benefits due to Executive hereunder could cause the
application of an acceleration or additional tax under
Section 409A of the Code, such payments or other benefits
shall be deferred if deferral will make such payment or other
benefits compliant under Section 409A of the Code, or
otherwise such payments or other benefits shall be restructured, to
the extent possible, in a manner determined by the Company that
does not cause such acceleration or additional tax. To the
extent any reimbursements or in-kind benefits due to Executive
under this Agreement constitute deferred compensation under
Section 409A of the Code, any such reimbursements or in-kind
benefits shall be paid to Executive in a manner consistent with
Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment
made under this Agreement shall be designated as a “separate
payment” within the meaning of Section 409A of the
Code.”
For the avoidance of doubt,
Section 4(g) of the Original Agreement (as amended
hereby) shall apply to the Original Agreement as well as the
Superseding Agreement, as may be applicable (notwithstanding
anything in the Superseding Agreement to the contrary).
2.
Section 5(f) of the
Original Agreement is hereby amended by deleting the end of the
first sentence commencing with “and such amount” and
replacing such portion of the sentence with the
following:
“and such
amount shall be payable over a period of twelve (12) months after
termination in accordance with Section 5(h) of this
Agreement; provided , however , to the extent that
such foregoing amount is exempt from Section 409A of the Code
and/or if such Change in Control constitutes a change in ownership,
change in effective control or a change in ownership of
a
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