Amendment to Severance
Agreement
The Severance Agreement (the “Severance
Agreement”) dated June 11, 2004 between Dynex Capital, Inc.
(the “Company”) and Stephen J. Benedetti (the
“Executive”) is hereby amended in the following
respects in order to comply with Section 409A of the Internal
Revenue Code, as amended, and applicable guidance issued thereunder
(collectively, “Code Section 409A”):
1. Section
5(a)(iii) of the Severance Agreement shall be replaced in its
entirety with the following:
(iii) to
the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies
in accordance with the terms of such plan, program, policy or
practice, or contract or agreement (including time and form of
payment if payable in a different form or time than provided in
this Section 5(a)) (such other amounts and benefits shall be
hereinafter referred to as the “ Other Benefits
”).
2. Section
5(c) of the Severance Agreement shall be amended by adding the
following to the end:
The Other Benefits and any payments that may be
due Executive under the 2004 Stock Incentive Plan shall be paid in
accordance with the timing of the applicable governing
documents.
3. Section
5(d)(i) of the Severance Agreement shall be amended by adding the
following to the end:
Any such accrued salary and bonus shall be paid
to the Executive in a lump sum in cash within 30 days of the Date
of Termination. Any deferred compensation or Other
Benefits shall be paid in accordance with the terms of the
applicable governing documents.
4. Section
8 of the Severance Agreement shall be amended by adding the
following to the end:
In the event any payments or benefits are to be
reduced, the Company shall reduce or eliminate the payments to the
Executive by first reducing or eliminating those payments or
benefits which are payable in cash and then by reducing or
eliminating those payments which are not payable in cash, in each
case in reverse order beginning with payments or benefits which are
to be paid or provided the farthest in time from the date of
determination. Any reduction pursuant to the preceding
sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing the Executive’s
rights and entitlements to any benefits or compensation.
5. The
Severance Agreement shall be amended by adding the following new
Section 11 to the end:
11.
Code Section 409A Compliance .
(a) The
intent of the parties is that payments and benefits under this
Agreement comply with Code Section 409A or comply with an exemption
from the application of Code Section 409A and, accordingly,
all
