Exhibit 10.22
AMENDMENT
TO
EXECUTIVE SEVERANCE
AGREEMENT
This AMENDMENT TO EXECUTIVE
SEVERANCE AGREEMENT (the “Amendment”) is dated as of
December 31, 2008, between The Yankee Candle Company, Inc., a
Massachusetts corporation (the “Company”), and
(the “Executive”).
WHEREAS, the Executive and the
Company have previously entered into an Executive Severance
Agreement dated as of
,
200 , as the same has been amended to date
(the “Agreement”); and
WHEREAS, in accordance with the
final treasury regulations issued pursuant to Section 409A of
the Internal Revenue Code (the “Final Regulations”),
the parties desire to enter into this Amendment to revise the terms
of the Agreement to provide for a definition of “Good
Reason” that satisfies the safe harbor definition set forth
in the Final Regulations with respect to certain of the payments
that may be provided pursuant to the Agreement; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for a definition of
“Disability” that satisfies the definition set forth in
the Final Regulations; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for a remedy period
required in the “Good Reason” safe harbor definition
set forth in the Final Regulations; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for the
continuation of health and dental benefits; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for payment forms
in compliance with the Final Regulations; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for the
determination of Eliminated Payments in a manner consistent with
Section 409A and the Final Regulations; and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for payment of
benefits on a fixed date as required by the Final Regulations;
and
WHEREAS, in accordance with the
Final Regulations, the parties desire to enter into this Amendment
to revise the terms of the Agreement to provide for a
Section 409A savings clause;
NOW, THEREFORE, in consideration of
the foregoing, the mutual covenants and agreements of the parties
contained herein and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. This Amendment shall become
effective upon its execution.
2. Section 1.4 of the Agreement
is hereby amended and restated by deleting Section 1.4 in its
entirety and inserting the following text:
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“1.4
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‘ Good
Reason ’ means (a) a material diminution in the
Executive’s base salary in effect immediately prior to the
Change in Control Event; (b) a material diminution in the
incentive compensation and employee benefits available to the
Executive under the executive compensation plan for the fiscal year
in which the Change in Control Event occurs; (c) a material
diminution in the Executive’s authority, duties and
responsibilities from those in effect immediately prior to the
Change in Control Event; or (d) a material change, which for
the purposes of this Agreement shall mean a distance greater than
50 miles, in the geographic location at which the Executive must
perform his or her duties and responsibilities following a Change
in Control Event compared to the location the Executive performed
his or her duties prior to the Change in Control Event;
provided , however , that Good Reason shall not exist
unless and until the Executive satisfies the notice and cure period
provisions set forth in Section 3.2(d).”
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3. Section 3.2 of the Agreement
is hereby amended and restated by deleting Section 3.2(d) and
inserting the following text:
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“(d)
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The Executive
must provide a Notice of Termination for Good Reason to the Company
within 90 days of the initial existence of the condition, event or
circumstance that constitutes Good Reason. Upon receipt of the
Notice of Termination for Good Reason, the Company shall have 30
days during which it may remedy the condition, event or
circumstance that constitutes Good Reason. If the Company remedies
such condition, event or circumstance, then the Executive shall not
be entitled to terminate employment with the Company for Good
Reason. Accordingly, any Date of Termination set forth in the
Notice of Termination for Good Reason shall not be less than 31
days nor more than 60 days following delivery of the Notice of
Termination to the Company.”
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4. Section 4.2 of the Agreement
is hereby amended and restated by deleting Section 4.2(b) and
inserting the following text:
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“(b)
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Continued Salary and Bonus
Payments . The Company
shall pay to the Executive, in a lump-sum cash payment within 30
days following the Date of Termination: (i) 50% of the
Executive’s highest annual base salary during the one-year
period prior to the Date of Termination (the “Base Salary
Payment”), and (ii) 50% of his or her incentive award
target under the executive compensation plan for the fiscal year in
which the Date of Termination occurs or, if such incentive award
target was greater in the prior fiscal year than in such fiscal
year, his or her incentive award target under the
executive
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compensation plan for the prior
fiscal year (such greater incentive award target being referred to
herein as th
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