Exhibit 10.2



 


Exhibit 10.2


 


AMENDMENT TO EMPLOYMENT AGREEMENT FOR


JOHN R. MILLER


 


            This
Amendment is entered into this 31st day of December 2008, by and
between National Beef Packing Company, LLC, a Delaware limited liability
company (“National Beef”) and John R. Miller (“Executive”).


 


            WHEREAS,
National Beef and Executive are parties to an Employment Agreement dated
December 30, 2008 (the “Agreement”), and the parties now desire to amend the
Agreement to comply with Section 409A of the Internal Revenue Code and the regulations
issued thereunder;


 


            NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, National Beef and Executive agree that the
Agreement is amended as follows:


 


            A.        The
second paragraph of Section 3(b) is amended to read as follows:


 


Any Annual Bonus accruing with respect to a fiscal
year shall be payable, less normal withholdings, within sixty (60) days
following the end of such fiscal year (the “Annual Bonus Date”); provided,
however, if calculation of the Annual Bonus is not administratively practicable
due to events beyond the control of Executive (or his beneficiary), then
payment shall be made during the first taxable year of Executive in which the
calculation of the amount of the payment is administratively practicable.  For
purposes of calculating any Annual Bonus under this Section 3(b), National
Beef’s EBT shall be determined by National Beef’s accountants using generally
accepted accounting principles consistently applied.


 


            B.         The
last sentence of Section 3(c)(i) is amended to read as follows:


 


Any Long-Term Bonus accruing under this Section
3(c)(i) shall be payable, less normal withholdings, within sixty (60) days
following the end of the fiscal year ending on or about August 30, 2010 (the
“Long-Term Bonus Date”); provided, however, if calculation of the Long-Term
Bonus is not administratively practicable due to events beyond the control of
Executive (or his beneficiary), then payment shall be made during the first
taxable year of Executive in which the calculation of the amount of the payment
is administratively practicable.


 


            C.         A
new Section 23 is added to read as follows:


 


23.        Compliance with Section 409A of the
Internal Revenue Code.  


 


a.         The parties intend that the payments and
benefits under this Agreement shall comply with or be exempt from Section 409A
of the Internal Revenue Code of 1986, as amended, and the regulations and
guidance promulgated thereunder (collectively “Code Section 409A”) and,
accordingly, the Agreement shall be interpreted and administered in conformity
with such intent to the maximum extent permitted.  


 

 

 

 

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b.         A termination of employment shall not be
deemed to have occurred for purposes of any provision of the Agreement
providing for the payment of any amounts or benefits upon or following a
termination of employment unless such termination is also a “separation from
service” within the meaning of Code Section 409A and, for purposes of any such
provision of the Agreement, references to a “termination,” “termination of
employment” or like terms shall mean “separation from service” within the
meaning of Code Section 409A.  


 


c.         Unless the Agreement provides a specified
and objectively determinable payment schedule to the contrary, to the extent
that any payment of base salary or other compensation is to be paid for a
specified continuing period of time beyond the date of the Executive’s
separation from service in accordance with National Beef’s payroll practices
(or other similar term), the payments of such base salary or other compensation
shall be made on a monthly basis.  


 


d.         Notwithstanding any other payment schedule
provided in the Agreement to the contrary, if the Executive is identified on
the date of his separation from service as a “specified employee” within the
meaning of that term under Code Section 409A(a)(2)(B), then the following shall
apply:


 

(i)         With regard to any payment
that constitutes nonqualified deferred compensation subject to Code Section
409A and payable on account of a “separation from service,” such payment shall
be made on the date which is the earlier of (A) the expiration of the six month
period measured from the date of the Executive’s “separation from service” and
(B) the date of the Executive’s death (the “Delay Period”) to the extent required
under Code Section 409A.  Upon the expiration of the Delay Period, all payments
delayed pursuant to this paragraph (whether they would have otherwise been
payable in a single sum or in installments in the absence of such delay) shall
be paid to the Executive in a lump sum, and all remaining payments due under
the Agreement shall be paid or provided in accordance with the normal payment
dates specified for them therein.

 

(ii)        To the extent that any
benefits to be provided during the Delay Period constitute nonqualified
deferred compensation subject to Code Section 409A and are provided on account
of a “separation from service,” the Executive shall pay the cost of such
benefits during the Delay Period, and National Beef shall reimburse the
Executive for that portion of the costs that would otherwise have been paid by
National Beef during the Delay Period upon expiration of the Delay Period, and
any remaining benefits shall be reimbursed or provided by National Beef in
accordance with the procedures specified therein.

 


e.         For all expenses, in-kind benefits, or
other reimbursements under the Agreement that constitute nonqualified deferred
compensation subject to Code Section 409A, each of the following shall apply:


 

(i)         All expenses or other
reimbursements shall be made on or prior to the last day of the taxable year
following the taxable year in which such expenses were incurred by the
Executive, 

 

(ii)        Any right to reimbursement or
in kind benefits shall not be subject to liquidation or exchange for another
benefit, and

 

(iii)       No such reimbursement,
expenses eligible for reimbursement, or in-kind benefits provided in any
taxable year shall in any way affect the expenses eligible for reimbursement,
or in-kind benefits to be provided, in any other taxable year.

 

 

 


 

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f.          Notwithstanding any other provision of the
Agreement to the contrary, in no event shall any payment under the Agreement
that constitutes nonqualified deferred compensation subject to Code Section
409A be subject to offset unless otherwise permitted by Code Section 409A.


 


            IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day and
year first written above. 

 

 


 


		
			
			National Beef Packing Company, LLC

			
	
			
			 

	
			
			 

	
			
			 

	
			
			By:       /s/ Steven D. Hunt                                
			

	
			
			Title:     Chair                                                   
			

	
			
			 

	
			
			 

	
			
			John R. Miller

	
			
			 

	
			
			 

	
			
			                 /s/
John R. Miller                            
			





 

 

 

 

 

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