**Exhibit 10.4**

 

**ARDEN GROUP, INC.**

**THIRD AMENDMENT TO**

**EMPLOYMENT AGREEMENT OF**

**BERNARD BRISKIN**

 

This Third Amendment to Employment Agreement (the “Third Amendment”) ismade and entered into effective as of December 31, 2008 by and betweenArden Group, Inc., a Delaware corporation (“Arden Group”), Arden-Mayfair, Inc.,a Delaware corporation and a wholly-owned subsidiary of Arden Group (“Arden-Mayfair”),AMG Holdings, Inc., formerly known as Telautograph Corporation, a Virginiacorporation and a wholly-owned subsidiary of Arden-Mayfair (“AMG”), Gelson’sMarkets, a California corporation and a wholly-owned subsidiary ofArden-Mayfair (“Gelson’s”)(Arden Group, Arden-Mayfair, AMG and Gelson’s areherein sometimes referred to collectively as the “Companies” and individuallyas a “Company”), and Bernard Briskin (“Employee”), with reference to thefollowing facts:

 

A.            The parties heretoare parties to that certain Employment Agreement dated as of May 13, 1988,as amended by that certain Amendment to Employment Agreement dated April 27,1994, and as further amended by that certain Second Amendment To EmploymentAgreement dated January 1, 1997 (collectively, the “Agreement”).

 

B.            Pursuant to Section 21of the Agreement, the parties desire to amend the Agreement, effective December 31,2008, as set forth herein.

 

**NOW, THEREFORE**, for and in consideration of the promises, covenantsand agreements hereinafter set forth, the parties hereto agree as follows:

 

1.             The first sentence of Section 9(a) of theAgreement is deleted and replaced with the following two (2) sentences:

 

                “(a)         Commencing on the date which is six (6) monthsafter the later of (i) the date of Employee’s Retirement (as said term ishereafter defined in subsection 9(c) below) or (ii) the date Employeeexperiences a “separation from service” as defined under Treas. Reg. §1.409A-1(h), the Company shall pay to Employee on a monthly basis in arrearsfor so long as Employee shall be living an amount per annum equal totwenty-five (25%) of Employee’s average Base Salary and Bonus (not includingbenefits, stock option rights or other employee compensation) which Employeehad earned and accrued with respect to the last three (3) full fiscalyears of the Company prior to Employee’s Retirement.  Notwithstanding the preceding sentence, aportion of such benefit shall be paid to Employee on a monthly basis during thesix (6) month period immediately following the later of (i) or (ii) inthe immediately preceding sentence on a regularly scheduled payment pursuant tothis Section 9 in an amount equal to one-twelfth (1/12th) of two times the lesser of(x) the sum of the Employee’s annualized compensation based upon theannual rate of pay for services provided to the Company for the Employee’staxable year preceding the taxable year in which the Employee has a “separationfrom service” with the Company (adjusted for any increase during that year thatwas expected to continue indefinitely if the Employee had not separated fromservice); or (y) the maximum amount that may be taken into account under aqualified plan pursuant to Section 401(a)(17) of Internal Revenue Code of1986, as amended, for the year in which 

 

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the Employee has a “separation from service.”  The amount of any such benefit that cannot bepaid pursuant the preceding sentence limitation during said six (6) monthperiod shall be paid to Employee in a lump-sum with the first regularlyscheduled payment otherwise paid pursuant to this Section 9.”

 

2.             The last three lines of Section 9(a) of theAgreement are amended to read as follows:

 

“would commence to accrue on June 1,2001 in the amount of $13,402.75 per month, and would, to the extentpermissible under this Section 9(a), be payable commencing July 1,2001.”

 

3.             The first sentence of Section 12 of the Agreementis amended by deleting the words, “90 days” and replacing them with the words, “75days.”

 

4.             Section 26(b) of the Agreement is herebyamended in its entirety to read as follows:

 

                “(b)         Termination by Companies WithoutCause.   The Companies may terminatethe employment of Employee without “cause” (as defined in subsection 26 (a) above)at any time during the term hereof by giving written notice to Employeespecifying therein the effective date of termination.  In the event the employment of Employee isterminated pursuant to this subsection 26 (b) without “cause,” Companiesshall be obligated to pay to Employee his Base Salary and his Bonus pursuant toSection 5 of this Agreement and all other benefits payable to Employeeunder this Agreement for the balance of the remaining term under Section 3(without extension).  Notwithstanding thepreceding sentence, in the case that Employee is a “specified employee” asdefined in Section 409A (2)(B) of the Internal Revenue Code of 1986,as amended, who becomes eligible for benefits under this subsection 26(b), dueto a “separation from service” as defined under Treas. Reg. § 1.409A-1(h), nopayment of any benefit under this subsection 26(b) shall be made beforethe date which is six (6) months after the date of Employee’s separationof service; *provided*,*however*,that notwithstanding the foregoing, a portion of such benefit shall be paid toEmployee on a monthly basis during the said six (6) month period on aregularly scheduled payment pursuant to this Section 26 in an amount equalto one-twelfth (1/12th) of two timesthe lesser of (i) the sum of the Employee’s annualized compensation basedupon the annual rate of pay for services provided to the Company for theEmployee’s taxable year preceding the taxable year in which the Employee has a “separationfrom service” with the Company****(adjusted forany increase during that year that was expected to continue indefinitely if theEmployee had not separated from service); or (ii) the maximum amount thatmay be taken into account under a qualified plan pursuant to Section 401(a)(17)of Internal Revenue Code of 1986, as amended, for the year in which theEmployee has a “separation from service,” but in no event shall the aggregateamount payable during said 6-month period pursuant to this Section 26(b) plusany amount payable during said 6-month period pursuant to Section 9 exceedthe lesser of the amounts referred to in clauses (x) or (y) of thepenultimate sentence of Section 9(a). The amount of any such benefit that cannot be paid pursuant thepreceding sentence limitation during said six (6) month period shall bepaid to Employee in a lump-sum with the first regularly scheduled paymentotherwise paid pursuant to this Section 26(b).** **Employee shall have no duty tomitigate and Companies shall have no right to offset any other compensationpaid to Employee during the applicable time period.”

 

5.             The effective date of this Amendment shall be December 31,2008.

 

6.             Exceptas expressly modified and amended by this Third Amendment, the Agreement shallremain in full force and effect in accordance with its terms.

 

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**IN WITNESS WHEREOF**, the parties have executed this Amendment effectivethe date first written above.

 
| **ARDEN GROUP, INC**  | ** **                | **ARDEN-MAYFAIR, INC** |
|-----------------------|---------------------------|------------------------|
| ** **            | ** **                | ** **             |
| by:                   |                      |                   | by: |   |
|                  |                      |                   |   |   |
| Title:                |                      |                   | Title: |   |
|                  |                      |                   |   |   |
| **AMG HOLDINGS, INC** | **GELSON’S MARKETS** |
| ** **            | ** **                |
| by:                   |                      |                   | by: |   |
|                  |                      |                   |   |   |
| Title:                |                      |                   | Title: |   |
|                  |                      |                   |   |   |
| **Bernard Briskin**   | ** **                |
|                  |                      |
|                  |                      |                   |
|                       |                           |                        |  |  |  |  |  |  |

 

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