EXHIBIT
10.28


 


AMENDMENT TO CHANGE IN CONTROL AGREEMENT


 


This Amendment to the Change in Control
Agreement between Tootsie Roll Industries, Inc., a Virginia corporation
(the “Company”), and
                                (the
“Executive”), dated                                     (the
“Agreement”), is entered into on December     , 2008.


 


WHEREAS, changes to the Agreement are
required in order for the Agreement to comply with Section 409A of the
Internal Revenue Code of 1986, as amended.


 


NOW, THEREFORE, the following provisions of
the Agreement hereby are amended as set forth herein.


 


PART III  Section 1(d)(2) is
amended by deleting the words “election contest, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act,” and substituting the
following words therefor:


 


“solicitation
by a Person other than the Board or the Gordon Family for the purpose of
opposing a solicitation by any other Person with respect to the election or
removal of directors”.


 


PART IV  Section 1(d)(3) is
amended by deleting the words “approval by the shareholders of the Company” and
substituting the word “consummation” therefore.


 


PART V  Section 1(d)(4) is
amended by deleting the words “approval by the shareholders of the Company of (i) a
plan of complete liquidation or dissolution of the Company or (ii)” and
substituting the words “consummation of” therefor.


 


PART VI  Section 1(d) is
amended by adding the following words at the end thereof (immediately following
Section 1(d)(4)):


 


“;
provided, however, that no such transaction or event shall constitute a Change
in Control unless it is also a “change in control event” within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”)”.


 


PART VII  Section 1(f) is
amended to read in its entirety as follows:


 


“(f)          “Date of Termination”
means the date on which the Executive separates from service, within the
meaning of Section 409A of the Code.”


 


PART VIII  Section 3(a) is
amended by deleting the words “within 30 days following the Date of Termination”
from the introductory portion thereof and adding the following words at the end
thereof (immediately following Section 3(a)(2)):


 


“The
amounts payable to the Executive pursuant
to this Section 3(a) shall be paid within 30 days following the Date
of Termination, except as otherwise provided in Section 15.”


 





















 


PART IX  Section 3(a)(1) is
amended by deleting the words “compensation previously deferred by the
Executive (together with any interest and earnings thereon) and any” immediately
preceding the words “accrued vacation pay,” and by deleting the words “in each
case” immediately following the words “accrued vacation pay,”.


 


PART X  Section 3(b)(1) is
amended to read in its entirety as follows:


 


ITEM 10.                “(b)         (1)  In addition to the payments to be made pursuant to
paragraph (a) of this Section 3, if on the Date of Termination the
Executive shall not be fully vested in his accrued benefits under the Pension
Plan, the Excess Benefit Plan or the Profit Sharing Plan, the Company shall pay
to the Executive (i) a lump sum cash amount equal to his unvested accrued
benefits under the Pension Plan and the Profit Sharing Plan as of such date,
payable within 30 days after the Date of Termination, and (ii) an amount
equal to his unvested accrued benefit under the Excess Benefit Plan, payable at
the time and in the form provided under the terms of the Excess Benefit Plan
and any applicable payment election thereunder.”


 


PART XI  Section 3(b)(2) is
amended by deleting the words “within 30 days following the Date of Termination”
immediately following the words “shall pay to the Executive” and adding the
following sentence at the end thereof:


 


“The
amount payable to the Executive pursuant to this Section 3(b)(2) shall
be paid within 30 days following the Date of Termination, except as otherwise
provided in Section 15.”


 


PART XII  Section 3(c) is
amended by deleting the words “compensation previously deferred by the
Executive (together with any interest and earnings thereon) and any”
immediately preceding the words “accrued vacation pay,” and by deleting the
words “in each case” immediately following the words “accrued vacation pay,”.


 


PART XIII  A new Section 3(d) is
added to read as follows:


 


ITEM 11.                “(d)         If during the Termination Period the employment of the
Executive shall terminate, whether or not by reason of a Nonqualifying
Termination, the Company shall pay to the Executive any compensation previously
deferred by the Executive (together with any interest and earnings thereon) in
accordance with the terms of the plans pursuant to which such compensation was
deferred.”


 


PART XIV  Section 4(a) is
amended by deleting the words “Internal Revenue Code of 1986, as amended (the “Code”)”
and substituting the word “Code” therefor.


 


PART XV  The fourth
sentence of Section 4(b) is amended by adding the following words at
the end thereof:


 


“,
but in no event later than the last day of the calendar year following the
calendar year in which the related tax is remitted to the Internal Revenue
Service.”


 

















 


PART XVI  Section 6
is amended by adding the words “and in accordance with Section 15,”
immediately following the words “on a current basis,” and by adding “U.S.”
immediately preceding the words “Prime Rate.”


 


PART XVII  The second and
third sentences of Section 11(b) are amended to read in their
entirety as follows:


 


“Failure
of the Company to obtain such assumption prior to the effectiveness of any such
merger, consolidation or transfer of assets shall be a breach of this Agreement
and (i) if such merger, consolidation or transfer is a “change in control
event,” within the meaning of Section 409A of the Code, or (ii) the
Executive terminates employment for Good Reason, the Executive shall be
entitled to compensation and other benefits from the Company in the same amount
and on the same terms as the Executive would be entitled hereunder if the
Executive’s employment were terminated following a Change in Control other than
by reason of a Nonqualifying Termination. 
For purposes of implementing clause (i) of the foregoing sentence,
the date on which any such merger, consolidation or transfer becomes effective
shall be deemed the Date of Termination.”


 


PART XVIII  Section 12(b) is
amended by adding the words “be required to be given and shall” immediately
preceding clause (i) thereof and by deleting the words “termination date”
in clause (iii) thereof and substituting therefor the words “Date of
Termination”.


 


PART XIX  Sections 15,
16 and 17 are renumbered as Sections 16, 17 and 18 and a new Section 15 is
added to read in its entirety as follows:


 


“15.         Section 409A.  This Agreement shall be interpreted and
construed in a manner that avoids the imposition of taxes and penalties under Section 409A
of the Code (“409A Penalties”).  In the
event the terms of this Agreement would subject the Executive to 409A
Penalties, the Company and the Executive shall cooperate diligently to amend
the terms of the Agreement to avoid such 409A Penalties, to the extent
possible.  Notwithstanding any other
provision in this Agreement, if on the Date of Termination, the Executive is a “specified
employee,” as defined in Section 409A of the Code, then to the extent any
amount payable under this Agreement constitutes the payment of nonqualified
deferred compensation, within the meaning of Section 409A of the Code,
that under the terms of this Agreement would be payable prior to the six-month
anniversary of the Date of Termination, such payment shall be delayed until the
earlier to occur of (a) the seven-month anniversary of the Date of
Termination or (b) the date of the Executive’s death.  Any reimbursement (including any advancement)
payable to the Executive pursuant to this Agreement shall be conditioned on the
submission by the Executive of all expense reports reasonably required by the
Company under any applicable expense reimbursement policy, and shall be paid to
the Executive within 30 days following receipt of such expense reports (or
invoices), but in no event later than the last day of the calendar year
following the calendar year in which the Executive incurred the reimbursable
expense.  Any amount of expenses eligible
for reimbursement during a calendar year shall not 


 

















 


affect
the amount of expenses eligible for reimbursement during any other calendar
year.  The right to reimbursement pursuant
to this Agreement shall not be subject to liquidation or exchange for any other
benefit.”


 


As amended hereby, the Agreement shall remain
in full force and effect.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Amendment to Change in Control Agreement as
of the date first above written.


 


	
   

  	
  TOOTSIE
  ROLL INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Ellen R. Gordon

  
	
   

  	
   

  	
  President and Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE: