Exhibit 10.11


 


AMENDMENT
NO. 1 TO LETTER AGREEMENT OF EMPLOYMENT


 


Amendment (this “Amendment”), made as of this December 22,
2006, by and among Lerner New York, Inc.
(the “Company”) and Kevin Finnegan
(“Executive”).


 


R E C I T A L S


 


WHEREAS, Executive is party to that certain Letter
Agreement of Employment between the Company and Executive dated May 30, 2006 (the “Agreement”).


 


WHEREAS, the Company and Executive wish to amend the
Agreement in order to clarify treatment of certain payments under the Agreement
in order to make them compliant with Section 409A of the Internal Revenue
Code of 1986, as amended.


 


NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
to the following:


 


1.                                       Amendment.


 


(a)                                  The current Section 7 of the
Agreement will be renumbered Section 7.1.


 


(b)                                 A new Section 7.2 shall be
added to the Agreement immediately following Section 7.1 as follows:


 


“Severance Pay of Key
Employee.  If on the date of your
termination of employment by the Company: (i) a distribution of
compensation to which you become entitled under this Agreement upon your
termination of employment (including but not limited to severance or other
termination benefits) would be “nonqualified deferred compensation” within the
meaning of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”), and the Treasury Regulations issued thereunder, including
Proposed Regulation Section 1.409A-1(b)(9)(iii) (or any successor
provision), which describes certain separation pay arrangements that do not provide for the deferral of
compensation, and (ii) you are a “key employee”, as defined in Code Section 416(i) without
regard to paragraph (5) thereof, then such distribution shall not be made
before the date which is six months after the date of your termination of
employment (or, if earlier, your death). 
All distributions to which you otherwise would be entitled during such
period shall be made on the date which is six months after the date of your
termination of employment (or, if earlier, your death).  Any distributions thereafter owed to you
under this Agreement will be made in accordance with the Company’s normal
payroll policies and procedures.”


 


(c)                                  A new Section 8 shall be
added to the Agreement immediately following Section 7.2 as
follows:


 


“Application of Code Section 409A.  It is the Company’s intent that compensation
and benefits to which you are entitled under this Agreement not be treated as “nonqualified deferred
compensation” under Code Section 409A (or any regulations or other
guidance promulgated thereunder) and that any ambiguities in the construction
of this Agreement be interpreted in order to effectuate such intent.  In the event that the Company determines, in
its sole discretion, that any compensation or benefits to which you are
entitled under this Agreement could be treated as “nonqualified deferred
compensation” under Code Section 409A unless this Agreement is amended or
modified, the Company may, in its sole discretion, amend or modify this
Agreement without obtaining any additional consent from you, so long as such
amendment or modification does not 


 

















 


materially affect the net
present value of the compensation or benefits to which you otherwise would be
entitled under this Agreement.”


 


(d)                                 All section references thereafter shall
be updated to reflect the above additions.


 


2.                                       Agreement Otherwise Unchanged. 
All other provisions of the Agreement shall remain in full force and
effect.


 


3.                                       Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.


 


4.                                       Counterparts. This Amendment may be executed in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.


 


5.                                       Waiver of Jury Trial. Each of the parties hereto waives any
right it may have to trial by jury in respect of any litigation based on,
arising out of, under or in connection with this Agreement or any course of
conduct, course of dealing, verbal or written statement or action of any party
hereto.


 


*   *  
*   *   *


 


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IN WITNESS WHEREOF, the undersigned has executed this Amendment as of
the date and year first written above.


 


 


	
   

  	
  By:

  	
  /s/ Richard P. Crystal

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard P. Crystal

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Finnegan

  
	
   

  	
  Name:

  	
  Kevin
  Finnegan

  



 


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