Exhibit (10)(k)
SUPPLEMENTAL DEFERRED COMPENSATION AGREEMENT
BETWEEN
XXXX CORPORATION
AND
XXXXXXX X. XXXXXXX
THIS AGREEMENT, entered into this ____ day of __________, 2002, by and
between Xxxx Corporation (the "Employer") and Xxxxxxx X. Xxxxxxx (the
"Officer"),
WITNESSETH:
WHEREAS, the Officer has rendered and will continue to render valuable
services to the Employer, and the Employer desires to provide supplemental
deferred compensation to the Officer;
NOW, THEREFORE, in consideration of the Officer's continued services to
the Employer, the parties hereto, intending to be legally bound hereby, agree as
follows:
ss.1. Definitions. For purposes of this Agreement, the following
definitions shall apply:
(a) "Agreement" shall mean this Supplemental Deferred
Compensation Agreement between the Employer and the Officer.
(b) "Board" shall mean the Board of Directors of the
Employer.
(c) "Change in Control Agreement" shall mean the
Change in Control Agreement between the Officer and the
Employer.
(d) "Employer" shall mean Xxxx Corporation, a
Pennsylvania corporation, or any successor thereto.
(e) "Officer" shall mean Xxxxxxx X. Xxxxxxx, an
officer of the Employer.
(f) "Pension Plan" shall mean the Xxxx Corporation
Pension Plan, as amended from time to time.
(g) "Supplemental Plan" shall mean the Xxxx
Corporation Supplemental Executive Benefits Plan, as amended
from time to time.
(h) "Trust Agreement" shall mean the Xxxx Corporation
Supplemental Executive Benefits Plan Trust Agreement.
ss.2. Supplemental Benefit. If the Officer's employment with the
Employer terminates as a result of a Change in Control as defined in the Change
in Control Agreement prior to the date he becomes fully vested in his benefits
under the Pension Plan and the Supplemental Plan, he shall as of the date of
such termination of employment (i) be deemed to have five Years of Benefit
Service, as defined under the Supplemental Plan, for purposes of determining the
amount of his accrued benefit as of such date under Article IV of the
Supplemental Plan, and (ii) be deemed to have five Years of Vesting Service, as
defined under the Supplemental Plan, for purposes of becoming fully vested in
such accrued benefit.
ss.3. Withholding; Payroll Taxes. The Employer shall withhold from
payments made under this Agreement any taxes required to be withheld for
Federal, state, or local taxes.
ss.4. Source of Funds.
(a) This Agreement shall be unfunded, and, except as provided
in subsection (b), payment of any benefits hereunder shall be made from
the general assets of the Employer. Any assets which may be set aside,
earmarked, or identified as being intended for the payment of benefits
under this Agreement shall remain assets of the Employer and shall be
subject to the claims of its general creditors. The Officer shall be a
general and unsecured creditor of the Employer to the extent of the
value of the amounts payable hereunder, and shall have no right, title,
or interest in any specific asset that the Employer may set aside,
earmark, or identify as for the payment of benefits under this
Agreement. The Employer's obligation under this Agreement shall be
merely that of an unfunded and unsecured promise of the Employer to pay
money in the future.
(b) Notwithstanding subsection (a), assets shall be set aside
in a grantor trust under the Trust Agreement and earmarked for the
payment of benefits under this Agreement, provided that the Officer
shall continue to be a general and unsecured creditor of the Employer
with respect to assets set aside in such trust.
ss.5. Administrator.
(a) This Agreement shall be administered by the Pension
Committee appointed by the Board, except that the Officer shall not
take part in any action or decision by the Committee under this
Agreement. Unless this Agreement specifically provides otherwise, the
Committee shall have sole discretion to construe and interpret the
provisions of this Agreement and to determine all questions concerning
benefit entitlements, including the power to construe and determine
disputed and doubtful terms. To the maximum extent permissible under
law, the determinations of the Committee on all such matters shall be
final and binding upon all persons involved.
(b) The Committee shall keep a record of its proceedings and
actions and shall maintain all books of account, records, and other
data as shall be necessary for the proper administration of this
Agreement. Such records shall contain all relevant data pertaining to
the Officer and his rights under this Agreement. The Committee shall
have the duty to carry into effect all rights or benefits provided
hereunder to the extent assets of the Employer are properly available
therefor.
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(c) The Employer shall pay all expenses of
administering this Agreement. Such expenses shall include any
expenses incident to the functioning of the Committee.
(d) The Employer shall indemnify the members of the
Committee and the employees of the Employer to whom the
Committee delegates duties under this Agreement against any
and all claims, losses, damages, expenses, and liabilities
arising from their responsibilities in connection with this
Agreement, unless the same is determined to be due to gross
negligence or willful malfeasance. The Employer may purchase
insurance covering its liabilities under this subsection (d).
ss.6. Claims Procedure.
(a) If the Officer or his spouse or other beneficiary
(hereinafter referred to as the "Applicant," which reference
shall include the legal representative, if any, of the Officer
or spouse or other beneficiary) does not receive the timely
payment of the benefits to which the Applicant believes he or
she is entitled under the terms of this Agreement, the
Applicant may make a claim for benefits in the manner
hereinafter provided.
All claims for benefits under this Agreement shall be
made in writing and shall be signed by the Applicant. Claims
shall be submitted to a representative designated by the
Committee and hereinafter referred to as the "Claims
Coordinator." The Claims Coordinator may, but need not, be a
member of the Committee. If the Applicant does not furnish
sufficient information with the claim for the Claims
Coordinator to determine the validity of the claim, the Claims
Coordinator shall furnish the Applicant with forms prescribed
by the Committee within ten days of receipt of the initial
claim, indicating any additional information which is
necessary for the Claims Coordinator to determine the validity
of the claim.
Each claim hereunder shall be acted on and approved
or disapproved by the Claims Coordinator within 60 days
following the receipt by the Claims Coordinator of the
information necessary to process the claim. The written or
electronic notice which the Claims Coordinator shall provide
to the Applicant in the event of a denial of a claim for
benefits shall set forth in a manner calculated to be
understood by the Applicant:
(1) The specific reason or reasons for
the denial;
(2) Specific references to pertinent
provisions of this Agreement on
which the denial is based;
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(3) A description of any additional
material or information necessary
for the Applicant to perfect the
claim and an explanation of why the
material or information is
necessary; and
(4) A description of the review
procedures under this Agreement and
the time limits applicable to such
procedures, including a statement
of the Applicant's right to bring a
civil action under section 502(a)
of ERISA (if applicable) following
an adverse benefit determination on
review.
If no action is taken by the Claims Coordinator on an
Applicant's claim within 60 days after receipt by the Claims
Coordinator, such application shall be deemed to be denied for
purposes of the following appeals procedure.
(b) An Applicant whose claim for benefits is denied
in whole or in part (such Applicant being hereinafter referred
to as the "Claimant") may appeal from such denial to the
Committee for a review of the decision by the entire
Committee. Such appeal must be made within six months after
the Claimant has received written notice of the denial as
provided above. An appeal must be submitted in writing within
such period and must:
(1) Request a review by the entire Committee
of the claim for benefits under this Agreement;
(2) Set forth all of the grounds upon which
the Claimant's request for review is based and any
facts in support thereof; and
(3) Set forth any issues or comments which
the Committee deems pertinent to the appeal.
The Committee shall make its decision on review
within 60 days after receipt of the Claimant's request for
review, unless special circumstances require an extension of
the time for processing the Claimant's request for review, in
which case written notice of the extension and circumstances
shall be provided to the Claimant prior to the termination of
the initial 60-day period and a decision shall be rendered as
soon as possible but not later than 120 days after receipt of
the request for review; provided, however, that if the
Claimant fails to submit information necessary to make a
benefit determination on review, such period shall be tolled
from the date on which the extension notice is sent to the
Claimant until the date on which the Claimant responds to the
request for additional information.
The Committee shall make a full and fair review of
the appeal and any written materials submitted by the Claimant
or the Employer in connection therewith. The Committee may
require the Claimant and the Employer to submit such
additional facts, documents, or other evidence as the
Committee in its discretion deems necessary or advisable in
making its review. The Claimant shall be provided, upon
request and free of charge, reasonable access to, and copies
of, all documents, records, and other information relevant to
the Claimant's claim for benefits. The Claimant shall also
have the opportunity to submit written comments, documents,
records, and other information relating to the claim for
benefits, and the Committee shall take into account all such
information submitted without regard to whether such
information was submitted or considered in the initial benefit
determination.
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On the basis of its review, the Committee shall make
an independent determination of the Claimant's eligibility for
benefits under this Agreement. The decision of the Committee
on any claim for benefits shall be final and conclusive upon
all parties thereto.
In the event the Committee denies an appeal, in whole
or in part, the Committee shall give written or electronic
notice of the decision to the Claimant, which notice shall set
forth in a manner calculated to be understood by the Claimant
the specific reasons for such denial and which shall make
specific reference to the pertinent provisions of this
Agreement on which the Committee decision was based. The
decision on review shall also include (i) a statement that the
Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the Claimant's
claim for benefits; and (ii) a statement describing any
voluntary appeal procedures offered under this Agreement, and
a statement of the Claimant's right to bring an action under
section 502(a) of ERISA (if applicable).
It is intended that the claims procedure under this
Agreement be administered in accordance with the claims
procedure regulations of the Department of Labor set forth in
29 C.F.R. ss.2560.503-1.
ss.7. Nonalienation of Benefits. Except as otherwise required by
applicable law, the right of the Officer or his spouse or other beneficiary to
any benefit or interest hereunder shall not be subject to encumbrance,
attachment, execution, garnishment, assignment, pledge, alienation, sale,
transfer, or anticipation, either by the voluntary or involuntary act of the
Officer or his spouse or other beneficiary or by operation of law, nor shall
such payment, right, or interest be subject to any other legal or equitable
process.
ss.8. Amendment and Termination. The Board may amend or terminate
this Agreement only with the written consent of the Officer. This Agreement
shall automatically terminate on the date the Officer becomes fully vested in
his accrued benefit under the Pension Plan and under Article IV of the
Supplemental Plan.
ss.9. Miscellaneous.
(a) No Contract of Employment. Nothing contained herein shall
be construed as conferring upon the Officer the right to continue in
the employ of the Employer.
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(b) Relationship to Other Benefits. The payment of benefits
hereunder shall not affect the Officer's entitlement to payments under
the Change in Control Agreement or the Xxxx Corporation Officer
Severance Plan, nor shall any payments made under the Change in Control
Agreement or under the Xxxx Corporation Severance Plan affect the
Officer's entitlement to benefits hereunder.
(c) Costs and Expenses of Enforcement. In the event that it
shall be necessary or desirable for the Officer to retain legal counsel
or incur other costs and expenses in connection with the enforcement of
any and all of his rights under this Agreement, the Employer shall pay
(or the Officer shall be entitled to recover from the Employer, as the
case may be) his reasonable attorneys' fees and cost and expenses in
connection with the enforcement of his said rights, regardless of the
final outcome, unless a court shall determine that under the
circumstances recovery by the Officer of all or a part of any such fees
and costs and expenses would be unjust.
(d) Applicable Law. The provisions of this Agreement shall be
construed and interpreted according to the laws of the Commonwealth of
Pennsylvania (without regard to principles of conflict of laws), to the
extent not superseded by Federal law.
(e) Successors. The provisions of this Agreement shall bind
and inure to the benefit of the Employer and its successors and
assigns. The term "successors" as used herein shall include any
corporate or other business entity which shall, whether by merger,
consolidation, purchase, or otherwise, acquire all or substantially all
of the business and assets of the Employer, and successors of any such
corporation or other business entity.
(f) Headings. The headings of the sections and subsections of
this Agreement are for reference only. In the event of a conflict
between a heading and the contents of a section or subsection, the
contents of the section or subsection shall control.
IN WITNESS WHEREOF, the Employer and the Officer have caused
this Supplemental Deferred Compensation Agreement to be duly executed this ____
day of _________, 2002.
Attest: XXXX CORPORATION
By:
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Xxxxxxx X. Xxxxxxx
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