e8vk
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): DECEMBER 31, 2008
PFSweb, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(STATE OR OTHER JURISDICTION
OF INCORPORATION)
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000-28275
(COMMISSION FILE NUMBER)
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75-2837058
(IRS EMPLOYER
IDENTIFICATION NO.) |
500 NORTH CENTRAL EXPRESSWAY
PLANO, TX 75074
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(972) 881-2900
(REGISTRANTS TELEPHONE NUMBER, INCLUDING AREA CODE )
N/A
(FORMER NAME OR ADDRESS, IF CHANGED SINCE LAST REPORT)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01. Entry into a Material Definitive Agreement
Effective as of December 31, 2008, the Company and each of its executive officers entered into
an amendment to the existing Executive Severance Agreements and Change in Control Severance
Agreements between the Company and such persons. The primary purpose of such amendment is to modify
such agreements so that they conform to Section 409A of the Internal Revenue Code. In addition, the
amendment to the Executive Severance Agreement modifies the calculation of the severance amount
thereunder.
The foregoing description of the amendments does not purport to be complete and is qualified
in its entirety by reference to the forms of the amendments which are filed herewith and
incorporated herein by reference.
ITEM 9.01. Financial Statements and Exhibits.
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Exhibit No. |
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Exhibit |
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10.1.
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Form of Amendment to Executive Severance Agreement. |
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10.2.
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Form of Amendment to Change in Control Severance Agreement. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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PFSweb, Inc.
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Dated: January 6, 2009 |
By: |
/s/ Thomas J. Madden
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Thomas J. Madden |
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Executive Vice President and
Chief Financial Officer |
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exv10w1
Exhibit 10.1
AMENDMENT OF
EXECUTIVE SEVERANCE AGREEMENT
THIS AMENDMENT made as of the 31st day of December, 2008, by and between PFSweb,
Inc., a Delaware corporation (the Company), and the individual whose name appears on the
signature page hereof as the Executive hereunder.
WHEREAS, the Company and the Executive are parties to that certain Executive Severance
Agreement (the Agreement); and
WHEREAS, the Company and the Executive wish to amend the Agreement as good faith compliance
with Section 409A of the Internal Revenue Code of 1986, as amended (the Code), the regulations
thereunder and related guidance issued by the Internal Revenue Service (IRS);
NOW, THEREFORE, it is agreed that the Agreement be and hereby is amended as follows:
FIRST: Section 1, Definitions, (a) Except as otherwise defined herein, terms used
herein shall have the same meaning ascribed thereto in the Agreement.
(b) In Section 1, the definition of Qualifying Termination is deleted in its entirety and is
hereby replaced to read as follows:
Qualifying Termination means the termination by the
Company of Executives employment other than a Termination for
Cause, but including termination by reason of the Executives death
or disability. Disability shall mean that an Executive is unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months. The term Qualifying
Termination shall not include the termination by Executive of his
employment, unless such termination is with Good Reason. Good
Reason shall mean that the Executive has complied with the Good
Reason Process following a material reduction by the Company of the
Executives annual base salary from its then current amount, other
than a reduction which is part of, and proportionate with, a general
reduction of annual base salaries of not less than three-quarters
(in number) of the Companys officers. Good Reason Process shall
mean that: (A) the Executive reasonably determines in good faith
that a Good Reason event has occurred; (B) the Executive notifies
the Company in writing of the occurrence of the Good Reason event
within 90 days of the occurrence of such event; (C) the Executive
cooperates in good faith with the Companys efforts, for a period
not less than 30 days following such notice, to modify the
Executives employment situation in a manner acceptable to the
Executive and the Company; and (D) notwithstanding such efforts, the
Good Reason event continues to exist and has not been modified in a
manner acceptable to the Executive. If the Company cures the Good
Reason event in a manner acceptable to the Executive during the 30
day period, Good Reason shall be deemed not to have occurred.
(c) Section 1 is further amended by adding the definition of Specified Employee as follows:
Specified Employee is an employee who, as of the employees date
of termination, is a key employee of the Employer within the meaning
of Section 416(i)(1)(A)(i), (ii), or (iii) of the Code (applied in
accordance with the regulations thereunder and disregarding Section
416(i)(5)) at any time during the 12-month period ending on a
Specified Employee Identification Date. If an Employee is a key
employee as of a Specified Employee Identification Date, the
Employee is treated as a key employee for purposes of the Agreement
for the entire 12-month period beginning on the Specified Employee
Effective Date.
(d) Section 1 is further amended by adding the definition of Specified Employee
Identification Date as follows:
Specified Employee Identification Date shall mean December 31 of
each year.
SECOND: Section 2(a) (ii) of the Agreement is amended so that the term S as used
therein shall be defined as follows:
S = Executives highest annual rate of base salary during the
12-month period immediately prior to the effective date of the
Qualifying Termination.
THIRD: The following language is being added as a new Section 10 of the Agreement and
the corresponding sections of the Agreement will be renumbered accordingly:
10. Compliance with Section 409A. Anything in this Agreement
to the contrary notwithstanding, if at the time of the Executives
date of termination, the Executive is considered a specified
employee within the meaning of Section 409A(a)(2)(B)(i) of the
Code, and if any payment that the Executive becomes entitled to
under this Agreement is considered deferred compensation subject to
interest and additional tax imposed pursuant to Section 409A(a) of
the Code as a result of the application of Section 409A(a)(2)(B)(i)
of the Code, then (A) no such payment shall be payable prior to the
date that is the earlier of (i) six months after the Executives
separation from service, or (ii) the Employees death and
(B) promptly following the date of termination, the
Company agrees to place such payment in escrow with a third party
escrow agent pending the release date set forth in the preceding
clause (A). The parties agree that this Agreement may be amended,
as reasonably requested by either party, and as may be necessary to
fully comply with Section 409A of the Code and all related rules and
regulations in order to preserve the payments and benefits provided
hereunder without additional cost to either party.
FOURTH: The effective date of this Amendment shall be December 31, 2008.
FIFTH: In all other respects, the Agreement is hereby ratified and confirmed.
IN WITNESS WHEREOF the parties hereto have set their hands as of the date set forth above.
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PFSweb, Inc. |
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By: |
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Name:
Title:
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Executive: |
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Print Name: |
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exv10w2
Exhibit 10.2
AMENDMENT
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS AMENDMENT made as of the 31st day of December, 2008, by and between PFSweb,
Inc., a Delaware Corporation (the Company), and the individual whose name appears on the
signature page hereof as the Executive hereunder.
WHEREAS, the Company and the Executive are parties to that certain Change in Control Severance
Agreement (the Agreement); and
WHEREAS, the Company and the Executive wish to amend the Agreement in good faith compliance
with Section 409A of the Internal Revenue Code of 1986, as amended (the Code), the regulations
thereunder and related guidance issued by the Internal Revenue Service (IRS);
NOW, THEREFORE, it is agreed that the Agreement be and hereby is amended as follows:
FIRST: Section 1, Definitions, (a) Except as otherwise defined herein, terms used
herein shall have the same meaning ascribed thereto in the Agreement.
(b) In Section 1, the definition of Change in Control is deleted in its entirety and is
hereby replaced to read as follows:
Change in Control has the meaning provided in Section 409A of the
Code and the Regulations thereunder.
(c) Section 1 is further amended by deleting the definition of Disability and replacing it
with the following:
Disability shall mean that an Executive is unable to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in
death or can be expected to last for a continuous period of not less
than 12 months.
(d) Section 1 is further amended by adding the word material before the word reduction in
clause (2) of the definition of Good Reason.
(e) Section 1 is further amended by adding the word materially before the word reduce in
clause (4) of the definition of Good Reason.
(f) Section 1 is further amended by changing the last paragraph of the Good Reason definition
by deleting the proviso which appears therein and inserting the following in its place:
For purposes of this Agreement, Good Reason shall mean that the
Executive has complied with the Good Reason Process (as defined
below) following the occurrence of any of the events described in
paragraphs (1) through (7) above. Good Reason Process shall mean
that: (A) the Executive reasonably determines in good faith that a
Good Reason event has occurred; (B) the Executive notifies the
Company in writing of the occurrence of the Good Reason event within
90 days of the occurrence of such event; (C) the Executive
cooperates in good faith with the Companys efforts, for a period
not less than 30 days following such notice, to modify the
Executives employment situation in a manner acceptable to the
Executive and the Company; and (D) notwithstanding such efforts, one
or more of the Good Reason events continues to exist and has not
been modified in a manner acceptable to the Executive. If the
Company cures the Good Reason event in a manner acceptable to the
Executive during the 30 day period, Good Reason shall be deemed not
to have occurred.
(g) Section 1 is further amended by revising the definition of Qualifying Termination by
deleting the words or Retirement which appear therein.
(h) Section 1 is further amended by adding the definition of Specified Employee as follows:
Specified Employee is an employee who, as of the employees Date
of Termination, is a key employee of the Employer within the meaning
of Section 416(i)(1)(A)(i), (ii), or (iii) of the Code (applied in
accordance with the regulations thereunder and disregarding Section
416(i)(5)) at any time during the 12-month period ending on a
Specified Employee Identification Date. If an Employee is a key
employee as of a Specified Employee Identification Date, the
Employee is treated as a key employee for purposes of the Agreement
for the entire 12-month period beginning on the Specified Employee
Effective Date.
(i) Section 1 is further amended by adding the definition of Specified Employee
Identification Date as follows:
Specified Employee Identification Date shall mean December 31 of
each year.
SECOND: Section 4 is amended by adding the following as subparagraph 4 (a)(3)
therein:
(3) Anything in this Agreement to the contrary notwithstanding, if
at the time of the Executives Date of Termination, the Executive is
considered a specified employee within the meaning of
Section 409A(a)(2)(B)(i) of the Code, and if any payment that the
Executive becomes entitled to under this Agreement is considered
deferred compensation subject to interest and additional tax imposed
pursuant to Section 409A(a) of the Code as a result of the
application of Section 409A(a)(2)(B)(i) of the Code, then (A) no
such payment shall be payable prior to the date that is the earlier
of (i) six months after the Executives separation from service, or
(ii) the Employees death and (B) promptly following
the date of termination, the Company agrees to place such
payment in escrow with a third party escrow agent pending the
release date set forth in the preceding clause (A). The parties
agree that this Agreement may be amended, as reasonably requested by
either party, and as may be necessary to fully comply with Section
409A of the Code and all related rules and regulations in order to
preserve the payments and benefits provided hereunder without
additional cost to either party.
THIRD: The effective date of this Amendment shall be December 31, 2008.
FOURTH: In all other respects, the Agreement is hereby ratified and confirmed.
IN WITNESS WHEREOF the parties hereto have set their hands as of the date set forth above.
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PFSweb, Inc. |
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By: |
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Name:
Title:
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Executive: |
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Print Name: |
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