Saks Fifth Avenue 2010 Annual Report Download - page 106
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Exhibit 10.38
AMENDMENT
TO THE
EMPLOYMENT AGREEMENT
BY AND BETWEEN
SAKS INCORPORATED AND
RONALD L. FRASCH
THIS AMENDMENT TO THE EMPLOYMENT AGREEMENT (the “Amendment”) is entered into as of December 13, 2010,
by and between Ronald L. Frasch (the “Executive”) and Saks Incorporated (the “Company”).
Capitalized terms used herein which are not otherwise defined have the same meaning as in the Employment Agreement.
WITNESSETH:
WHEREAS, the Company and the Executive have previously entered into that certain Employment Agreement dated July 31,
2007 (the “Original Agreement”), as previously amended by the Amendment to Employment Agreement, dated as of December 18,
2008 (the “First Amendment”) and the Amendment to Employment Agreement dated as of April 9, 2009 (the “Second Amendment,”
and collectively with the Original Agreement and the First Amendment, the “Employment Agreement”);
WHEREAS, it is necessary to amend the Employment Agreement to bring it into compliance with Internal Revenue Code
Section 409A and the final Treasury Regulations issued thereunder; and
WHEREAS, the Company and Executive believe it is in the best interest of the Company and the Executive to adopt this
Amendment.
NOW, THEREFORE, BE IT RESOLVED, that effective as of December 8, 2010, the Employment Agreement is amended as
follows:
“(ii) Provided that the Executive has executed and delivered to the Company, and has not revoked, the general release in
substantially the form attached hereto as Attachment A (the “Release”) by the fiftieth (50) day following the Employment
Termination Date, the Company shall make the following payments and shall provide the following benefits, provided that if the
Executive directly or indirectly engages in conduct that constitutes an Association (as defined in Section 12(b)(iv)(D) hereof),
the Company’s obligation to make the following payments and to provide the following benefits shall immediately terminate:”
“(A) except as otherwise provided in Section 10 hereof, an amount equal to the sum of two times the Executive’s Base Salary
and one times the Executive’s target bonus potential amount described in Section 3(b) for the fiscal year during which the
Employment Termination Date occurs, which amount shall be payable in 24 equal monthly installments commencing with the
month following the month in which the sixtieth (60) day following the Employment Termination Date occurs;”
1
1. The first paragraph of Section 4(a)(ii) of the Employment Agreement is deleted in its entirety and the following shall be
substituted in its
p
lace:
2. Section 4(a)(ii)(A) of the Em
p
lo
y
ment A
g
reement is deleted in its entiret
y
and the followin
g
shall be substituted in its
p
lace: