DEFERRED BONUS AGREEMENT FOR SEKAR SUNDARARAJAN
Exhibit
10.1
FOR
XXXXX
XXXXXXXXXXXX
WHEREAS,
Hooker Furniture Corporation (the “Company”) and Xxxxx Xxxxxxxxxxxx (the
“Executive”) (collectively, the “Parties”) entered into an Employment Package
Offer Letter on or about February 8, 2008 (the “Offer Letter”) and agreed upon a
“Deferred Compensation Vesting Schedule” as described in Appendix 1 to the Offer
Letter (the “Appendix”);
WHEREAS,
the Offer Letter and Appendix constitute a nonqualified deferred compensation
plan within the meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (“Section 409A”) that is intended to comply with the requirements of
Section 409A; and
WHEREAS,
the Parties now wish to amend and restate the nonqualified deferred compensation
plan described in the Offer Letter and Appendix to consolidate the plan into a
single plan document and to add a claims procedure, as required by the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”).
NOW,
THEREFORE, BE IT RESOLVED, that the Parties do hereby agree that this Deferred
Bonus Agreement (the “Agreement”), as set forth below, shall amend, restate,
supersede and replace the Appendix and that portion of the Offer Letter that
concerns the deferred bonus.
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1.
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Deferred
Bonus Amounts. The Executive shall be awarded a
designated deferred bonus (each, a “Deferred Bonus Amount”) in the amount
and at the date specified in the table below. The vested
portion of each Deferred Bonus Amount shall be paid to the Executive (or
the Executive’s Beneficiary in the event of his death) on the Payment Date
designated in the table below.
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Fiscal
Year
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Deferred Bonus
Amount
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Award Date
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Payment Date
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2009
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$ | 50,000 |
February
8, 2008
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January
31, 2010
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2010
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$ | 50,000 |
February
1, 2009
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January
30, 2011
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2011
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$ | 50,000 |
January
31, 2010
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January
29,
2012
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2.
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Vesting
of Deferred Bonus Amounts. The Executive shall be vested
in 33.33% of each Deferred Bonus Amount on the date on which such amount
is awarded. The Executive shall be vested in 66.66% of each
Deferred Bonus Amount if he remains continuously employed by the Company
until the end of the first fiscal year in which the Deferred Bonus Amount
was awarded. The Executive shall vest in 100% of each Deferred
Bonus Amount if he remains continuously employed by the Company from each
respective Award Date through the corresponding Payment Date, as set forth
in Section 1 above.
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3.
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Payment
of Deferred Bonus Amounts. The Company shall pay the
Executive the vested portion the Executive’s Deferred Bonus Amounts within
fifteen (15) business days following the designated Payment Date for that
Deferred Bonus Amount, as specified in Section 1
above.
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4.
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Designation
of Beneficiary. The Executive may designate a
Beneficiary to receive any benefits due under this Agreement upon the
Executive's death. Such designation must be made by executing a
Beneficiary designation form provided by the Company. The
Executive may change a Beneficiary designation by executing a subsequent
Beneficiary designation form. A Beneficiary designation is not
binding on the Company until the Beneficiary designation form is actually
delivered to the Company.
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5.
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Other
Benefits and Employment. Nothing contained herein shall
in any way limit the Executive’s right to participate in or benefit from
any pension, retirement, severance, disability, or other employee benefit
plan or arrangement under which he is or may become eligible for by reason
of his employment with the Company. No provision of this
Agreement shall be construed as conferring upon the Executive the right to
continue in the employ of the
Company.
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6.
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Withholding. Notwithstanding
any of the foregoing provisions hereof, the Company may withhold from
payments to be made hereunder all applicable federal and state withholding
taxes.
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7.
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Unfunded
Arrangement. There is no fund associated with this
Agreement. The Company shall be required to make payments only
as benefits become due and payable. The Executive and his Beneficiary
shall have no right, other than the right of an unsecured general
creditor, against the Company in respect to the benefits payable, or which
may be payable, to the Executive and his Beneficiary
hereunder. If the Company, acting in its sole discretion,
establishes a reserve or other fund associated with this Agreement, the
Executive and his Beneficiary shall have no right to or interest in any
specific amount or asset of such reserve or fund by reason of amounts
which may be payable under this Agreement, and neither the Executive nor
his Beneficiary shall have any right to receive any payment under this
Agreement except as and to the extent expressly provided in this
Agreement.
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8.
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No
Assignment of Benefits. Any benefits to which the
Executive or his Beneficiary may become entitled under this Agreement are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of
any kind, and any attempt to cause any such benefits to be so subjected
shall not be recognized. Benefits are not subject to attachment
or legal process for the debts, contracts, liabilities, engagements or
torts of the Executive or his Beneficiary. This Agreement does
not give the Executive any interest, lien or claim against any specific
asset of the Company.
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2
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9.
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Administration.
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(a)
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This
Agreement shall be administered by the Company, which shall have the
express discretionary authority to interpret the terms of this Agreement
and to adopt such rules and regulations as it deems necessary to carry out
the Agreement. Subject to subsection (b) below, the Company's
interpretation and construction of any provision of this Agreement shall
be final and conclusive.
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(b)
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Claims
Procedures.
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(i) Right to
File a Claim. The Executive or his Beneficiary (as described in
Section 4 of this Agreement) is entitled to file a claim with respect to
contributions, benefits or other aspects of the operation of this
Agreement. The claim is required to be in writing and must be made to
the Company.
(ii) Denial of
Claim. If the claim is denied by the Company, the claimant shall be
notified in writing within ninety (90) days after receipt of the claim or within
one hundred eighty (180) days after such receipt if special circumstances
require an extension of time. If special circumstances require an
extension of time, the claimant shall be furnished written notice prior to the
termination of the initial ninety (90) day period which explains the special
circumstances requiring an extension of time and the day by which the Company
expects to make its determination. A written notice of denial of the
claim shall contain the following information:
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(A)
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Specific
reason or reasons for the denial,
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(B) Specific
reference to the pertinent provisions of the Agreement on which the denial is
based,
(C) A
description of any additional material or information necessary for the claimant
to perfect the claim and an explanation of why the material or information is
necessary, and
(D) A
description of the Agreement’s review procedures and the time limits applicable
to the procedures, including a statement of the claimant’s right to bring a
civil action under Section 502(a) ERISA following a denial upon review of the
claim.
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(iii)
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Claims
Review Procedure.
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(A) The
Executive or his Beneficiary may request that the Company review the denial of
the claim. Such request must be made within sixty (60) days following
the date the claimant received written notice of the denial of the
claim. The Company shall afford the claimant a full and fair review
of the decision denying the claim and shall:
3
(1) provide,
upon request and free of charge, reasonable access to and copies of all
documents, records and other information relevant to the claim,
and
(2) permit
the claimant to submit written comments, documents, records and other
information relating to the claim.
(B)
The
decision on review by the Company shall be in writing and shall be issued within
sixty (60) days following receipt of the request for review. The
period for decision may be extended to a date not later than 120 days after such
receipt if the Company determines that special circumstances require
extension. If special circumstances require an extension of time, the
claimant shall be furnished written notice prior to the termination of the
initial 60-day period which explains the special circumstances requiring an
extension of time and the date by which the Company expects to render its
decision on review. The decision on review shall
include:
(1) Specific
reason or reasons for the adverse determination,
(2) references
to the specific provisions in the Agreement on which the determination is
based,
(3) 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, and
(4) a
statement of the claimant’s right to bring an action under Section 502(c) of
ERISA.
(iv) Authorized
Representative: Any action required or authorized to be taken by the
claimant pursuant to this Section 1 may be taken by a representative authorized
in writing by the claimant to represent the claimant.
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10.
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Amendment or Termination. This
Agreement may be amended or revoked at any time in whole or in part by the
mutual written agreement of the Executive and the Company subject to the
provisions of Section 15 presented
below.
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4
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11.
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Successors. In
the event of the dissolution, merger, consolidation or reorganization of
the Company, the successor to all or a major portion of the Company’s
assets shall continue this Agreement, and the successor shall have all of
the powers, duties and responsibilities of the Foundation under this
Agreement.
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12.
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Governing
Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the state of the Commonwealth
of Virginia, except to the extent preempted by applicable federal law, and
without regard to the conflicts of laws or provisions of any
jurisdiction.
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13.
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Construction. For
construction, the singular and plural include each other where the meaning
would be appropriate. The headings in this Agreement have been
inserted for convenience of reference only and are to be ignored in any
construction of the provisions. If a provision of this Agreement is not
valid, that invalidity shall not affect any other provisions of this
Agreement.
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14.
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Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and
the same instrument.
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15.
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Code
Section 409A. It is intended that this Agreement comply
with Section 409A and any regulations, guidance and transition rules
issued thereunder, and the Agreement shall be interpreted and operated
consistently with that intent. If the Company shall determine
that any provisions of this Agreement do not comply with the requirements
of Section 409A, the Company shall have the authority to amend the
Agreement to the extent necessary (including retroactively) in order to
preserve compliance with said Section 409A. The Company shall
also have the express discretionary authority to take such other actions
as may be permissible to correct any failures to comply with Section
409A.
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16.
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No
Effect on Offer Letter. This Agreement shall exclusively
govern the terms of the deferred bonus and shall have no effect any other
terms of the Executive’s employment contained in the Offer
Letter. Such other terms shall remain in full force and
effect.
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* * * * *
5
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the 10th
day of June 2009.
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/s/ E. Xxxxx Xxxxx
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E.
Xxxxx Xxxxx,
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Executive
Vice President – Finance and
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Administration
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EMPLOYEE
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/s/ Xxxxx Xxxxxxxxxxxx
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Xxxxx
Xxxxxxxxxxxx
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