FORM OF FIRST AMENDMENT TO
SEVERANCE BENEFITS AGREEMENT
This AMENDMENT is
made and entered into pursuant to the SEVERANCE BENEFITS AGREEMENT
of
[ ]
(the “Agreement”) by and between 3Com Corporation (the
“Company”) and
[ ]
(“Executive”).
WHEREAS ,
the Company desires to amend the Agreement to comply with
Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”).
NOW,
THEREFORE, it is hereby agreed that the Agreement is amended in
the following respects, effective as of January 1, 2009, or
such earlier date as required to comply with Code Section 409A
and guidance issued thereunder.
1. The first
“WHEREAS” clause is revised in its entirety to read as
follows:
“WHEREAS,
the Executive is currently employed by the Company as its
[ ] and is eligible to receive
severance benefits pursuant to the Company’s Section 16
Officer Severance Plan (as amended, the “Plan”);
and”
2. Section 2
is revised in its entirety to read as follows:
“2.
Term of Agreement . This Agreement shall be effective as of
the Effective Date and shall terminate on the Termination Date.
“Termination Date” shall mean the Executive’s
last date of employment with 3Com Corporation or, if later, the
date on which the Executive incurs a separation from service with
3Com Corporation as defined in Treasury
Regulation Section 1.409A-1(h).”
3. A new
sentence is added to the end of Section 3 of the Agreement to
read as follows:
“If the
Release Agreement has not been executed and/or the revocation
period stated in the Release Agreement has not expired by the
sixtieth (60 th )
day following the Termination Date, severance benefits shall be
forfeited. The Release Agreement shall be furnished to the
Executive in sufficient time to enable the Executive to comply with
the preceding sentence, taking into account the period of time that
the Executive must be given to consider the terms of the Release
Agreement under any applicable law.”
4. The
introductory sentence of Section 4 of the Agreement is revised
in its entirety to read as follows:
“
Severance Benefits . Provided that the Executive has
executed a valid Release Agreement and the applicable revocation
period has expired by the sixtieth (60 th )
day following the Termination Date, Executive will be entitled to
receive the following:”
5. Paragraph A
of Section 4 is revised in its entirety to read as
follows:
i. One
(1) year of the Executive’s annualized base salary as of
the Termination Date, subject to all applicable taxes and
withholdings, with payment commencing within sixty-five
(65) days after the Executive’s Termination Date in
substantially equal installments corresponding to the
Company’s normal payroll practices and continuing for a
period of twelve (12) months, provided that the Executive
continues to comply with all terms and conditions of the Release
Agreement during the twelve (12) month period. Each payment
shall be considered a separate payment and not part of a series of
installments for purposes of the short-term deferral rules under
Treasury Regulation Section 1.409A-1(b)(4)(i) and the
exemption for involuntary terminations under separation pay plans
under Treasury Regulation Section 1.409A-1(b)(9)(iii). As a
result, the following payments are exempt from the requirements of
Code Section 409A:
(a) payments that
are made by the fifteenth (15 th )
day of the third month of the calendar year following the year of
the Executive’s Termination Date, and
(b) any additional
payments that are made on or before the last day of the second
(2 nd
) calendar year following the year
of the Executive’s Termination Date and that do not exceed
the lesser of two (2) times: (A) the Executive’s
annualized compensation based upon the annual rate of pay for
services provided to the Company for the Executive’s taxable
year that precede
