409A AMENDMENT TO DYNEX CAPITAL, INC. 2004 STOCK INCENTIVE PLAN
Published on March 16, 2009
Exhibit
10.1.1
409A
Amendment to the
Dynex
Capital, Inc.
2004
Stock Incentive Plan
WHEREAS,
Dynex Capital, Inc. (the “Company”) previously adopted the Dynex Capital, Inc.
2004 Stock Incentive Plan (the “Plan”); and
WHEREAS,
the Company is authorized to amend the Plan under Article XV; and
WHEREAS
the Company desires to amend the Plan in order to comply with the requirements
of Section 409A of the Internal Revenue Code and applicable guidance issued
thereunder (“Code Section 409A”); and
WHEREAS,
all outstanding awards under the Plan are intended to be exempt from Code
Section 409A and the Company desires to maintain such exemption;
and
WHEREAS,
the Plan allows for awards that are subject to Code Section 409A and the Company
desires to comply with Code Section 409A in the event any such awards are made
under the Plan in the future.
NOW,
THEREFORE, the Company hereby amends the Plan as follows to be effective on
January 1, 2009:
1.
A
new Article XVIII is hereby added to the end of the Plan as
follows:
ARTICLE
XVIII
CODE
SECTION 409A COMPLIANCE
The
Company intends that all Awards under this Plan either comply with Section 409A
of the Internal Revenue Code and applicable guidance issued thereunder (“Code
Section 409A”) or comply with an exemption from the application of Code Section
409A. The Committee shall not exercise any discretion under the Plan
which would violate Code Section 409A. Each Award Agreement covering
an Award subject to Code Section 409A shall comply with the requirements of Code
Section 409A and shall include any terms required by Code Section 409A
(including the 6 month delay requirement, authorized distribution events and
time and form of payment requirements). All Awards exempt from Code
Section 409A shall be interpreted and administered in a manner as to maintain
such exemption.
2.
All
terms of the Plan not inconsistent with this Amendment shall remain in
effect.
IN
WITNESS WHEREOF, Dynex Capital Inc. has caused this Amendment to be signed by
its duly authorized officer on the day and year first above
written.
DYNEX
CAPITAL, INC.
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Attest:
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By:
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/s/ Stephen J.
Benedetti
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Its:
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Executive Vice President, Chief
Operating
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/s/ Alison G. Griffin
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Officer and Chief Financial
Officer
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