Amendment to Employment Agreement
Exhibit 10.33
Amendment to Employment Agreement
Amendment to Employment Agreement (this “Amendment”), dated as of December 30, 2008, by and between Scientific Games Corporation, a Delaware corporation (the “Company”), and Xxxxxx X. Xxxxxx (“Executive”).
WHEREAS, Executive has been employed pursuant to an Employment Agreement made on August 2, 2006 but as of January 1, 2006 by and between the Company and Executive, as amended by the letter agreement dated October 7, 2008 (as so amended, 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(f) of the Employment Agreement is hereby amended by adding the following four 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). Any cash payment made on an after-tax basis that involves a reimbursement of taxes may be made as soon as the Company receives the information necessary for such purpose but in no event later than the end of the calendar year following the year other taxes are remitted to the taxing authority. Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A of the Code.”
2. Section 5(j) of the Employment Agreement is hereby amended by inserting the following three sentences after the first sentence thereof:
“The Company shall provide Executive with the proposed form of release referred to in the immediately preceding sentence no later than two (2) days following the Termination Date. The Executive shall have 21 days to consider the release and if he executes the release, shall have seven (7) days after execution of the release to revoke the release, and, absent such revocation, the release shall become binding. Provided Executive does not revoke the release, payments contingent on the release (if any) shall be paid no earlier than eight (8) days after execution thereof in accordance with the applicable provisions herein.”
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3. Employment Agreement. Except as set forth in this Amendment, all other terms and conditions of the Employment Agreement shall remain unchanged and in full force and effect.
4. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.
5. Headings. The headings of the paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any provision of this Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed on its behalf as of the date first above written.
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SCIENTIFIC GAMES CORPORATION |
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By: |
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/s/ Xxx X. Xxxxxxxxxx |
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Name: |
Xxx X. Xxxxxxxxxx |
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Title: |
Vice President, General Counsel and Secretary |
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/s/ Xxxxxx X. Xxxxxx |
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Xxxxxx X. Xxxxxx |
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