Exhibit 10(viii)
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Amendment to Employment Agreement
between Susquehanna
and Xxxxxxx X. Xxxxxx, dated February 28, 2002
FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT
The Employment Agreement effective as of February 28, 2001, by and between
SUSQUEHANNA BANCSHARES, INC., a Pennsylvania corporation organized as a
financial holding company under the Bank Holding Company Act of 1956, as amended
(the "Company"), and XXXXXXX X. XXXXXX, an adult individual whose principal
residence is at 0 Xxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 (the "Employee"),
is hereby amended as follows:
1. Paragraph 10.4 is amended by adding the following sentence to the end
thereof:
"The qualifying event under COBRA shall be the date on which the Employee
terminates employment or suffers a reduction of hours that would otherwise
cause him to lose coverage under the applicable group health plan but for
the extension of benefits hereunder."
2. Paragraph 10.5 is amended by adding the following sentence to the end
thereof:
"In the event of and in consideration for all amounts and benefits payable
hereunder by reason of a Change in Control, the Employee acknowledges that
the provisions of paragraph 14 hereof shall extend to any offices or
facilities of any business that becomes an affiliate of or successor to the
Company on account of such Change in Control."
3. Paragraph 10.6 is amended by deleting said Section in its entirety and by
substituting therefor:
10.6 (i) Anything in this Agreement to the contrary notwithstanding,
in the event that it shall be determined that any payment or distribution
by the Company to or for the benefit of the Employee, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (each such payment, a "Parachute Payment"), would
constitute an "excess parachute payment" within the meaning of Section 280G
of the Internal Revenue Code of 1986, as amended (the "Code") (whether or
not under an existing plan, arrangement or other agreement) and would
result in the imposition on the Employee of an excise tax under Section
4999 of the Code, then, in addition to any other benefits to which the
Employee is entitled under this Agreement or otherwise, the Employee shall
be paid an amount in cash equal to the sum of the excise taxes payable by
the Employee by reason of receiving Parachute Payments plus the amount
necessary to place the Employee in the same after-tax position (taking into
account any and all applicable federal, state and local excise, income or
other taxes at the highest possible applicable rates on such Parachute
Payments (including, without limitation, any payments under this
subparagraph 10.6(i)) as if no excise taxes had been imposed with respect
to Parachute Payments (the "Parachute Gross-up"). Any Parachute Gross-up
otherwise required by this subparagraph 10.6(i) shall not be made later
than the time of the corresponding payment or benefit hereunder giving rise
to the underlying Section 4999 excise tax (to the extent such determination
has been made prior to such time), even if the payment of the excise tax is
not required under the Code until a later time. Any Parachute Gross-up
otherwise required under this subparagraph 10.6(i) shall
be made whether or not there is a Change in Control, whether or not
payments or benefits are payable under this Agreement, whether or not the
payments or benefits giving rise to the Parachute Gross-up are made in
respect of a Change in Control and whether or not the Employee's employment
with the Employer shall have been terminated.
(ii) All determinations to be made under this subparagraph 10.6 shall
be made by the Company's independent public accountant (the "Accounting
Firm"), which firm shall provide its determinations and any supporting
calculations both to the Company and the Employee within 10 days of his
termination of employment.
(iii) In the event the Internal Revenue Service notifies the Employee
of an inquiry with respect to the applicability of Code ss.280G or Code
ss.4999 to any payment by the Company, or assessment of tax under Code
ss.4999 with respect to any payment by the Company, the Employee shall
provide notice to the Company of such inquiry or assessment within 10 days,
and shall take no action with respect to such inquiry or assessment until
the Company has responded thereto (provided such response is timely with
respect to the inquiry or assessment). The Company shall have the right to
appoint an attorney or accountant to represent the Employee with respect to
such inquiry or assessment, and the Employee shall fully cooperate with
such representative as a condition of receiving a Parachute Gross-up with
respect to such inquiry or assessment.
(iv) All of the fees and expenses of the Accounting Firm in performing
the determinations referred to in subsections (i) and (ii) above, or of the
representative appointed pursuant to subsection (iii) above, shall be borne
solely by the Company.
As so amended, said Employment Agreement is hereby confirmed, this 18th day of
January, 2002.
SUSQUEHANNA BANCSHARES, INC.
Attest:/s/ Xxxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxxxx
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Secretary Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and COO
EMPLOYEE
Witness:
/s/ Xxxxxx Xxxxxxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxx Xxxxxxxxxx, Xx. Xxxxxxx X. Xxxxxx
