EXHIBIT 10.2
July 12, 1999
Xx. Xxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Dear Xx. Xxxxxxx:
As authorized by the Board of Directors, your special retention
contract arrangement, effective September 24, 1998 (the "Agreement"), is
modified as follows:
1. The second sentence of Section 4.3 of the Agreement is amended by
deleting the word "and" at the end of clause (f), replacing the period at the
end of clause (g) with a semicolon, and adding the following at the end:
"(h) the Company shall:
(A) contribute, within 30 calendar days after the Date of
Termination, under Section 3 of the SERP an amount equal to
the sum of (1) three times the maximum amount that could be
contributed by the Company under Section 3(a)(i) of the
SERP for a full calendar year based on the Executive's
Compensation (as defined in The Xxxxx Company Savings Plan)
computed for the 12 months immediately preceding such Date
of Termination, and (2) one times such maximum amount
multiplied by a fraction, the numerator of which is the
number of days transpired in the year of termination prior
to and including the Date of Termination and the
denominator of which is 365; and
(B) accrue an additional benefit under Section 2 of the SERP
equal to the amount by which the accrued benefit, as of the
Date of Termination, of the Executive would be increased if
the Executive were (1) credited, for all purposes under the
SERP and the Pension Plan (as defined in the SERP), with
three additional years of service credit based on the
Executive's Cash Compensation (as defined in the Pension
Plan) computed for the 12 months immediately preceding such
Date of Termination and (2) deemed, for all purposes under
the SERP and the Pension Plan, to be three years older in
age, provided, however, that in
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no event shall the Executive's total accrued benefit under
the SERP and the Pension Plan be less than the amount
provided under the Retirement Supplement referenced in
clause (e) above;
(i) to the extent such benefit is greater than the benefit provided
in clause (f) above, for three years after the Executive's Date
of Termination, or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy, the
Company shall continue benefits to the Executive and/or the
persons who from time to time thereafter are Dependents at least
equal to those which would have been provided to them in
accordance with the Welfare Benefit Plans if the Executive's
employment had not been terminated or, if more favorable to the
Executive and the Dependents, as in effect generally at any time
thereafter. "Welfare Benefit Plans" are welfare benefit plans
and programs generally applicable to full-time officers or
employees of the Company on a date that is six months prior to
the date a Change of Control occurred, including, without
limitation, medical, disability insurance (group and
individual), disability, leaves of absence, group life, split
dollar life, accidental death and travel accident insurance
plans and programs;
(j) all outstanding options and restricted shares granted to the
Executive to purchase Common Shares under the Incentive Plans or
under any other option or equity incentive plan shall, to the
extent not vested in accordance with the terms of the applicable
agreement, become immediately fully vested and, in the case of
options, shall remain exercisable until the end of the original
term of such option without regard to the Executive's
termination of employment;
(k) the Company will continue to pay any premiums due on any
individual insurance policies in effect on the life of the
Executive for three years following the Date of Termination,
after which time the Company shall distribute such policy to the
Executive without requiring the Executive to repay any premiums
paid by the Company;
(l) notwithstanding any provisions to the contrary with respect to
the Gross-Up Payment or under any loan agreement between the
Company and the Executive, any obligation of the Executive to
the Company to repay the Gross-Up Payment or any loan or other
indebtedness shall be forgiven;
(m) the Company will transfer any car made available to the
Executive for his use by the Company to the Executive for no
consideration, provided that the Executive pays any and all
transfer taxes and agrees to be
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solely responsible for insurance and the cost of insurance
after the date of transfer; and
(n) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive all Other Benefits
to the extent accrued on the Date of Termination and not
specifically provided for in this sentence. "Other Benefits"
means any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under
any plan, program, policy or practice or contract or agreement
of the Company, including earned but unpaid and stock and
similar compensation, that is in effect on the date that is six
months prior to the date a Change of Control occurred."
2. The cross reference in clause (c) in Section 4.3 of the
Agreement to Section 4.2 is amended to refer to Section 4.1.
3. Clause (d) in the definition of "Good Reason" in Section 4.3 of
the Agreement is amended in its entirety to read as follows:
"(d) the Company fails to comply with any of the provisions of this
Agreement, other than an isolated, insubstantial and inadvertent
failure that both (1) did not occur in bad faith and (2) was remedied
by the Company promptly after receipt of notice thereof from the
Executive."
To acknowledge your agreement to the above amendments to the
Agreement, please sign and date the original of this letter.
Sincerely yours,
THE XXXXX COMPANY
By_____________________________
Xxxxxxx X. XxXxxx
Chairman, Executive Committee
of the Board of Directors
The undersigned agrees to the
above amendments to the Agreement.
Signature:_________________________
Date:______________________________
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