phrase is used in applicable regulations
issued pursuant to Section 409A of the Code) to the extent such event is the
basis for payments of amounts that are treated as nonqualified deferred
compensation subject to Section 409A of the Code.
To the extent any
reimbursements or in-kind benefits due to
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Employee under this Agreement constitutes "deferred compensation" under
Section 409A of the Code, any such reimbursements or in-kind benefits shall be
paid to you in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Each payment made under this Agreement shall be designated as a "separate
payment" within the meaning of Section 409A of the Code.
The Company shall
consult with Employee in good faith regarding the implementation of the
provisions of this Section 6.12.
11.
EMPLOYEE SHALL BE ELIGIBLE TO RECEIVE A BONUS AS PROVIDED IN THE CASH
BONUS PLAN FOR GARRY P. HERDLER APPROVED BY THE COMPENSATION COMMITTEE ON
DECEMBER 4, 2008, WHICH BONUS PLAN SHALL, WITH RESPECT TO EMPLOYEE, BE IN
ADDITION TO AND NOT A REPLACEMENT OF THE COMPANY'S INCENTIVE COMPENSATION PLAN.
12.
COMPANY CONFIRMS THAT ALL BONUS INCOME, WHETHER RECEIVED BEFORE, ON
OR AFTER, THE DATE HEREOF, AND REGARDLESS OF WHETHER SUCH BONUS INCOME IS
SIGN-ON, GUARANTEED MINIMUM BONUS, ADDITIONAL BONUS OR OTHER BONUS AMOUNTS AND
WHETHER DEFERRED OR NOT OR ELECTED TO BE IN A NON-CASH FORM SHALL BE CONSIDERED
"RECOGNIZED BONUS" FOR PURPOSES OF THE COMPANY'S SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN ("SERP").
13.
EXCEPT AS SET FORTH HEREIN, THE TERMS, CONDITIONS AND PROVISIONS OF
THE EMPLOYMENT AGREEMENT REMAIN UNCHANGED AND SUCH TERMS, CONDITIONS AND
PROVISIONS ARE HEREBY CONFIRMED.
14.
THIS AMENDMENT TO EMPLOYMENT AGREEMENT MAY BE EXECUTED IN MORE THAN
ONE COUNTERPART, EACH OF WHICH SHALL BE AN ORIGINAL AND ALL OF WHICH TOGETHER
SHALL CONSTITUTE ONE INSTRUMENT.
IN WITNESS WHEREOF, the Company and the Employee have caused this Second
Amendment to Employment Contract to be executed as of the date first set forth
above.
ORLEANS HOMEBUILDERS, INC.
By:
/s/ MICHAEL T. VESEY
Name:
Michael T. Vesey
Title:
President & COO
GARRY P. HERDLER
/s/ GARRY P. HERDLER
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