Exhibit 10(ll)
NON-QUALIFIED DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT is entered into this ____ day of _________, 2003 by and
between THE XXXXXXXX AND XXXXXXXX COMPANY, an Ohio corporation ("XXXXXXXX"), and
__________________ ("ASSOCIATE").
Associate is a valued member of a select group of management or highly
compensated associates of Xxxxxxxx, and currently is an Officer of Xxxxxxxx.
Xxxxxxxx desires to encourage Associate to remain employed by Xxxxxxxx, and
to recognize the past and future contributions of Associate to the success of
Xxxxxxxx.
Associate is eligible for a salary continuation program for officers, the
terms of which are set forth in an agreement between Xxxxxxxx and Associate
dated _______________ (the "SALARY CONTINUATION AGREEMENT"). This Agreement
amends and restates the Salary Continuation Agreement, and the benefits provided
under this Agreement replace those previously provided under the Salary
Continuation Agreement.(1)
THEREFORE, in consideration of the mutual obligations described below, the
parties agree as follows:
1. DEFINITIONS. As used in this Agreement, the terms set forth below shall
have the following meanings:
(a) "CHANGE IN CONTROL" shall mean the occurrence of any of the following:
(i) Any "person" as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than Xxxxxxx X. Xxxxx, Xx., his children or his grandchildren,
Xxxxxxxx, any trustee or other fiduciary holding securities under an
employee benefit plan of Xxxxxxxx or any company owned, directly or
indirectly, by the shareholders of Xxxxxxxx in substantially the same
proportions as their ownership of stock of Xxxxxxxx), who is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of Xxxxxxxx
representing twenty percent (20%) or more of the combined voting power
of Xxxxxxxx' then outstanding securities;
(ii) during any period of two consecutive years (not including any period
prior to the execution of this Plan), individuals who at the beginning
of such period constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement
with Xxxxxxxx to effect a transaction described in clause (i), (iii)
or (iv) of this Section) whose election by Xxxxxxxx' shareholders was
approved by a vote of at least two-thirds
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(1) This paragraph would be included only if the Associate had a salary
continuation agreement in effect prior to execution of this Agreement.
(2/3) of the directors at the beginning of the period or whose
election or nomination for election was previously so approved cease
for any reason to constitute at least a majority thereof;
(iii) the consummation of a merger or consolidation of Xxxxxxxx or any
direct or indirect subsidiary of Xxxxxxxx with any other corporation,
other than (1) a merger or consolidation which would result in the
voting securities of Xxxxxxxx outstanding immediately prior to such
merger or consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) more than 50% of the combined
voting power of the voting securities of Xxxxxxxx or such surviving
entity or parent thereof outstanding immediately after such merger or
consolidation or (2) a merger or consolidation effected to implement a
recapitalization of Xxxxxxxx (or similar transaction) in which no
"person" (as hereinabove defined) is or becomes the beneficial owner,
directly or indirectly, of securities of Xxxxxxxx (not including in
the securities beneficially owned by such person any securities
acquired directly from Xxxxxxxx or its affiliates other than in
connection with the securities acquired directly from Xxxxxxxx or its
affiliates other than in connection with the acquisition by Xxxxxxxx
or its affiliates of a business) representing twenty percent (20%) or
more of the combined voting power of Xxxxxxxx' then outstanding
securities; or
(iv) the shareholders of Xxxxxxxx approve a plan of liquidation,
dissolution or winding up of Xxxxxxxx or an agreement for the sale or
disposition by Xxxxxxxx of all or substantially all of Xxxxxxxx'
assets.
(b) "CLAIMANT" means Associate, or any beneficiary of Associate, as
determined under the provisions of this Agreement.
(c) "DISABILITY" and/or "DISABLED" means any of the following conditions
which first occur after the date this Agreement is executed:
(i) the total and irrevocable loss by Associate of:
(1) sight of both eyes;
(2) the use of both hands or both feet;
(3) the use of one hand and one foot;
regardless of whether Associate is able to perform the duties of, or
is working at, any occupation;
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OR
(ii) the inability of Associate to perform all of the substantial and
material duties of his regular occupation as a result of an
injury or sickness. If a disability described in the preceding
part of this clause (ii) continues for a period of sixty (60)
months, then for purposes of this clause (ii), disability means
the inability of Associate to perform all of the substantial and
material duties of any occupation for which he is reasonably
qualified by education, training or experience.
(d) "GOOD REASON" means the occurrence of any of the following events: (A)
Xxxxxxxx reduces Associate's base salary below the amount of such base salary in
effect immediately preceding a Change in Control without Associate's written
consent; (B) Xxxxxxxx fails to continue to provide Associate with fringe
benefits (including bonuses, vacation, health and disability insurance, etc.) at
least equivalent to those of other similarly situated Associates of Xxxxxxxx;
(C) Associate is required by Xxxxxxxx to perform duties or services which differ
significantly from those performed by him prior to the Change in Control, or
which are not ordinarily and generally performed by a similarly situated
executive of a corporation; or (D) the nature of the duties or services which
Xxxxxxxx requires Associate to perform necessitates absence overnight from his
place of residence, because of travel involving the business affairs of
Xxxxxxxx, for more than ninety (90) days during any period of six (6)
consecutive months.
(e) "OFFICER" means an Associate of Xxxxxxxx who is a member of a select
group of management or highly compensated associates, designated an Officer by
the Chief Human Resources Officer of Xxxxxxxx ("CHRO"), and compensated in
accordance with any salary scales or pay grades applicable to Officers.
(f) "PAYMENT DATE" means the first to occur of the following:
(i) the date Associate dies, but only if:
(1) he was employed by Xxxxxxxx on that date; or
(2) he previously terminated employment with Xxxxxxxx after having
satisfied the Service Requirement; or
(3) he previously terminated employment with Xxxxxxxx because he was
Disabled, and he remained continuously Disabled until his death.
(ii) the date Associate terminates employment with Xxxxxxxx after attaining
age fifty-five (55), but only if:
(1) he has satisfied the Service Requirement as of his
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termination date; or
(2) Associate is Disabled as of his termination date.
(iii) the date, after the termination of his employment with Xxxxxxxx, on
which Associate attains age fifty-five (55), but only if:
(1) Associate has satisfied the Service Requirement as of the date he
attains age fifty-five (55); or
(2) he was Disabled when his employment by Xxxxxxxx terminated, and
he remained Disabled continuously until he attained age
fifty-five (55).
(g) "SERVICE REQUIREMENT" means the completion by Associate of at least one
hundred seventy-four (174) calendar months of employment by Xxxxxxxx, whether or
not continuous, during which Associate is an Officer for a period of at least
three (3) years, taking into account employment before and after the date this
Agreement is executed. Associate shall be considered employed by Xxxxxxxx during
an authorized leave of absence, as described in Section 12, below.
(h) "TERMINATION FOR CAUSE" means a termination of Associate's employment
whenever occasioned by (i) the willful and continued failure by Associate to
substantially perform duties with Xxxxxxxx (other than any such failure
resulting from incapacity due to physical or mental illness) after a written
demand for substantial performance is delivered to Associate by the Board, which
demand specifically identifies the manner in which the Board believes Associate
has not substantially performed Associate's duties, or (ii) the willful engaging
by Associate in conduct which is demonstrably and materially injurious to
Xxxxxxxx or its subsidiaries, monetarily or otherwise. For purposes of this
definition, no act, or failure to act, on Associate's part shall be deemed
"willful" unless done, or omitted to be done, by Associate not in good faith and
without reasonable belief that Associate's act, or failure to act, was in the
best interest of Xxxxxxxx.
2. DEFERRED COMPENSATION PAYMENTS.
(a) AMOUNT OF PAYMENT. An amount, expressed as an annual single-life
annuity payable at Associate's retirement from Xxxxxxxx on or after his Normal
or Early Retirement Date (both as defined in the Xxxxxxxx and Xxxxxxxx Company
Retirement Plan (the "QUALIFIED PENSION PLAN")) equal to six and one half
percent (6.5%) of his Final Average Pay, as defined in the Qualified Pension
Plan (referred to below as the "NON-QUALIFIED PLAN BENEFIT").
(b) FORM OF PAYMENT.
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(1) NORMAL FORM OF PAYMENT. Unless Associate elects otherwise under
Section 2(b)(2), or the Committee decides otherwise pursuant to
Section 2(b)(4), Associate shall receive payment as follows:
(A) An initial payment equal to the Lump Sum Amount (as defined in
2(b)(3), below); plus
(B) A life annuity which is actuarially equivalent to the difference,
if any, between:
(i) the present value of the Non-qualified Plan Benefit; and
(ii) the Lump Sum Amount;
The present value referred to in 2(b)(1)(B)(i) shall be
determined based on the actuarial assumptions set forth in
2(b)(3)(B), below.
(2) WAIVER OF RIGHT TO LUMP SUM. Associate may elect not to receive the
lump sum payment described in 2(b)(1)(A), and to have his entire
Non-qualified Plan Benefit paid as a single-life annuity. Any such
election must be made at least twelve (12) months prior to his Payment
Date, in writing, on a form acceptable to the CHRO, and, to be
effective, must be received timely by the office of the CHRO.
(3) The LUMP SUM AMOUNT shall be determined as follows:
(A) First, subtract:
(i) the annual single life annuity payable to Associate from the
Qualified Pension Plan (the "QUALIFIED PLAN BENEFIT");
FROM
(ii) an amount equal to $75,000 increased by an inflation
adjustment of one fourth of one percent (.25%) for each
month of employment after January 1, 2003.
One (1) day of employment during a month is sufficient to earn
the inflation adjustment for that month. No adjustment for
inflation will be made after the month of termination, however.
The result of subtracting Associate's Qualified Plan Benefit from
the Annual Amount, as determined above, is the amount of a
hypothetical, annual, single-life annuity payable for the life of
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Associate. The amount of this hypothetical annuity is referred to
below as the "TARGET BENEFIT".
(B) Next, convert the lesser of the Target Benefit and the
Non-qualified Plan Benefit to a lump sum, using the following
actuarial assumptions:
(i) Fifty-four percent (54%) of the sum of: (1) the discount
rate used in preparing the Financial Accounting Standard 87
report for the Pension Plan for Xxxxxxxx' fiscal year in
which the lump sum distribution is paid; and (2) two
percent (2%).
(ii) The length of the payment is twenty and five-tenths (20.5)
years increased by six-tenths (.6) of a year for each year
(or portion thereof) that the Payment Date precedes age
sixty-two (62) or decreased by six-tenths (.6) of a year
for each year (or portion thereof) that the Payment Date
follows age sixty-two (62).
(iii) The annual annuity amount is payable in equal monthly
installments, as of the first day of each month.
(C) The result of the calculations described in (B), next above, is
the Lump Sum Amount.
(4) OTHER PAYMENT OPTIONS. Any part of the Aggregate Non-qualified benefit
which otherwise would be paid as a life annuity may, at the option of
the Committee and after appropriate adjustment for actuarial
equivalence, be paid in the same form as elected by Associate under
the Qualified Retirement Plan.
(c) DEATH BENEFITS. If Associate dies after payments have begun under this
Agreement, and before receiving all of the payments to which he is entitled
under this Agreement, the beneficiary designated under Section 3 shall receive
the balance of the payments, determined according to the benefit election in
effect on the date of death of the Associate.
If Associate dies while this Agreement is in effect, and before payments have
begun under this Agreement, the beneficiary designated under Section 3 shall
receive the payments to which Associate would have been entitled, paid according
to 2(b)(1).
(d) LIMITATION ON DEATH BENEFITS. Notwithstanding any contrary provision of
the Agreement, no payment shall be made under this Agreement by reason of the
death of Associate as a result of suicide which occurs within two (2) years of
the date of this
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Agreement. The provisions of the preceding sentence shall apply whether or not
Associate is sane at the time the suicide occurs.
3. DESIGNATING A BENEFICIARY. Subject to the provisions of this Section,
Associate may, from time to time, designate a beneficiary or beneficiaries to
receive any payments under this Agreement which remain due and payable at the
time of his death. Each beneficiary must be designated by Associate on a written
beneficiary designation form, which must be received prior to his death.
Associate may change his designated beneficiary or beneficiaries by submitting
an appropriately completed, written beneficiary designation form to the CHRO
prior to his death and prior to the commencement of benefit payments.
If Associate fails properly to designate a beneficiary, any payment
otherwise due and payable under this Agreement will be made to Associate's
surviving spouse, if any, and otherwise to the personal representative of
Associate's estate.
4. THE EFFECT OF PROMOTION OR DEMOTION. If Associate is demoted so that he
remains employed by Xxxxxxxx, but is no longer an Officer, his Non-qualified
Plan Benefit shall be determined as of the date he ceased to be an Officer. In
order to be eligible for payments under this Agreement, Associate must satisfy
all applicable Service Requirements or qualify for the payment under Section 9.
5. ADMINISTRATION. The authority to control and manage the operation and
administration of the benefits provided pursuant to this Agreement is vested in
a Committee established pursuant to Article Six of the Xxxxxxxx and Xxxxxxxx
Supplemental Retirement Plan (the "SUPPLEMENTAL PLAN"). With respect to matters
which are subject to this Agreement, the Committee has the rights, duties and
obligations set forth in this Section 5.
This Agreement, and any related documents, shall be retained by the CHRO on
behalf of the Committee, and made reasonably available for examination by
Associate. Upon written request, those documents and other relevant information
shall be provided to the parties to this Agreement.
(a) MEMBERSHIP AND MANNER OF ACTING. The Committee shall consist of three
(3) or more persons selected by the Board of Directors of Xxxxxxxx or by any
committee or member of the Board of Directors of Xxxxxxxx to whom authority to
appoint the Committee has been delegated. The Committee shall act by the
concurrence of a majority of its then members by meeting or by writing without a
meeting. The Committee, by unanimous written consent, may authorize any one of
its members to execute any document, instrument or direction on its behalf. A
written statement by a majority of the Committee members or by an authorized
Committee member shall be conclusive in favor of any person reasonably acting in
reliance on it.
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(b) RIGHTS, POWERS AND DUTIES. The Committee shall have such authority as
may be necessary to discharge its responsibilities, including the following
powers, rights and duties:
(i) to interpret and construe, in its sole discretion, in a
nondiscriminatory manner, the provisions of this Agreement, as
amended from time to time, and to adopt such rules of procedure and
regulations as are consistent with those provisions and as it deems
necessary and proper;
(ii) to determine, in its sole discretion, in a nondiscriminatory manner,
all questions relating to the eligibility, benefits and other rights
of all persons under this Agreement;
(iii) to direct all payments and distributions required or permitted under
this Agreement;
(iv) to maintain and keep adequate records concerning its proceedings and
acts in such form and detail as the Committee may decide; and
(v) except as otherwise expressly provided in this Agreement, to
establish actuarial assumptions and procedures for determining
actuarial equivalence and for any other purpose required to implement
this Agreement; and
(vi) to delegate its powers and duties to others as it sees fit.
(c) APPLICATION OF RULES. The Committee shall apply all rules of procedure
and regulations adopted by it in a uniform and non-discriminatory manner. Any
act of the Committee based on an interpretation of this Agreement which is made
in good faith shall be binding and conclusive upon all persons or entities
claiming under it.
(d) REMUNERATION AND EXPENSES. No remuneration shall be paid to any
Committee member as such. The reasonable expenses of a Committee member incurred
in the performance of a Committee function shall be reimbursed by Xxxxxxxx,
however.
(e) RESIGNATION OR REMOVAL OF COMMITTEE MEMBER AND APPOINTMENT OF
SUCCESSOR. A Committee member may resign at any time by advance written notice
to the other Committee members. Xxxxxxxx may remove a Committee member by giving
advance notice to him and the other Committee members. Xxxxxxxx may fill any
vacancy in the membership of the Committee and shall give prompt notice thereof
to the other Committee members.
(f) RELIANCE ON INFORMATION PROVIDED BY XXXXXXXX. The Committee may rely on
any oral or written statement made by an authorized representative of Xxxxxxxx.
If the Committee so requests, Xxxxxxxx shall certify any such statement.
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(g) INDEMNIFICATION. Xxxxxxxx shall indemnify the Committee, each of its
members and any employee or director of Xxxxxxxx to whom authority or
responsibility have been delegated under this Section 5 (collectively, the
"INDEMNIFIED GROUP") with respect to any liability actually and reasonably
incurred (including reasonable attorneys fees, expenses, judgments, fines and
amounts paid in settlement) in connection with any threatened or pending action,
suit or other proceeding relating to any act or failure to act in connection
with the discharge of their responsibilities, but only if:
(i) the member of the Indemnified Group acted (or failed to act) in good
faith and based on a reasonable belief that the conduct was consistent
with the best interest of the Plan; and
(ii) with respect to any criminal action or proceeding, they had no
reasonable cause to believe that their conduct was unlawful.
(h) NOTICES. Any notice or document required to be filed with any person
under this Agreement will be properly filed if delivered or mailed by registered
mail, postage prepaid, to such person, in care of Xxxxxxxx, at the address where
it maintains its corporate headquarters, or at such other place as Xxxxxxxx
designate from time to time in a written notice to Plan Participants. Any notice
required under the Plan may be waived by the person entitled to notice.
6. GENERAL CLAIM PROCEDURES. If a Claimant fails to receive a payment to which
he believes he is entitled under this Agreement, he may file a written claim for
the payment with the CHRO.
If the claim is wholly or partially denied, written notice of the denial
will be furnished to the Claimant within a reasonable time after the claim is
filed. Each notice denying a claim shall include the following information:
(a) the reason or reasons the claim was denied;
(b) a specific reference to the provision of the Agreement upon which the
denial is based;
(c) a description of any additional material or information necessary for
the Claimant to perfect the claim; and
(d) an explanation of the claim appeal procedures described in Section 7,
below.
7. APPEAL PROCEDURES. Subject to the requirements of the Section, a
Claimant may appeal the denial of a claim. Appeals must be filed in writing with
the Committee not later than 60 days after the Claimant receives written notice
that the claim has been denied. As a part of the appeal process, the Claimant
may review pertinent
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documents, submit written comments and request that a hearing be held to
consider the appeal.
The decision to hold a hearing to consider the appeal shall be within the
sole discretion of the Committee, whether or not the Claimant requests a
hearing.
Except as provided below, each appeal will be decided not later than 60
days after the Committee receives the written appeal. If, however, special
circumstances require an extension of time for deciding an appeal, a decision
shall be rendered within a reasonable period of time, but not later than 120
days after the Committee receives the written appeal and any additional
information submitted by the Claimant in accordance with this Section.
Appeal decisions shall be written and shall include the specific reason(s)
for the decision and the specific reference(s) to the pertinent provisions of
this Agreement on which the decision is based.
8. SOURCE OF PAYMENTS. All payments under this Agreement shall be made solely
from the general assets of Xxxxxxxx. No such assets shall be segregated or
placed in trust to secure the performance of the obligations of Xxxxxxxx under
this Agreement.
Xxxxxxxx may, however, in its sole discretion, purchase one or more
policies of insurance with respect to Associate, the proceeds of which may, but
need not, be used by Xxxxxxxx to satisfy part or all of its obligations under
this Agreement. Xxxxxxxx will be the owner of any such policy. Neither Associate
nor any other person or entity claiming through Associate shall have any rights
with respect to any such policy or to the proceeds of any such policy. As a
condition of receiving any benefits under this Agreement, Associate, on behalf
of himself and any person or entity claiming through him, agrees to cooperate
with Xxxxxxxx in obtaining any insurance policy that Xxxxxxxx chooses to
purchase with respect to Associate by submitting to such physical examinations,
completing such forms, and making such records available as may be required from
time to time.
The rights under this Agreement of Associate and any person or entity
claiming through him shall be solely those of an unsecured, general creditor of
Xxxxxxxx. No insurance policy or other asset of Xxxxxxxx shall be held by
Xxxxxxxx for or on behalf of Associate, or any other person, or constitute
security for the performance of any obligations of Xxxxxxxx under this
Agreement.
9. SPECIAL PAYMENT PROVISIONS RELATING TO CHANGE IN CONTROL. Notwithstanding any
other provision of this Agreement to the contrary, if within twenty-four (24)
months following a Change in Control of Xxxxxxxx Associate's employment is
terminated by Xxxxxxxx (other than a "Termination for Cause" (as defined
above)), or Associate terminates his employment for Good Reason, and Associate
has attained at least one year of service as an Officer of Xxxxxxxx as of the
date of such Change in Control, Associate shall be entitled to a lump sum
payment equal to the present value of
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the benefit he would have received pursuant to Section 2 of the Agreement as if
the requirements of Associate's Payment Date had been satisfied, multiplied by
the lesser of one (1), or a fraction:
(a) the numerator of which is the sum of:
(i) Associate's whole and fractional years of service with Xxxxxxxx as
of such date of termination, and
(ii) the number of whole and fractional years during which Associate
receives severance benefits pursuant to any employment or severance
agreement entered into with Xxxxxxxx, and
(b) the denominator of which is fifteen (15).
If Associate has commenced receiving benefits under Section 2 of the Agreement
as of the date of such Change in Control, Associate shall be entitled to receive
a lump sum payment equal to the present value of the remaining payments he would
have been entitled to receive pursuant to Section 2. For purposes of the
preceding sentence, the present value of the payments made pursuant to Section 2
shall be calculated using the interest rate applied by the Pension Benefit
Guaranty Corporation in valuing lump sum distributions that is in effect on the
date of Associate's termination of employment or the date of the Change in
Control, whichever applies.
10. INDEPENDENCE OF AGREEMENT. Except as otherwise expressly provided, this
Agreement is independent of, and in addition to, any other employment agreement,
Associate benefit plan or agreement, or other right that Associate may have as a
result of his employment by Xxxxxxxx. This Agreement is not a contract of
employment between Associate and Xxxxxxxx. No provision of this Agreement shall
be construed to limit or restrict:
(a) the right of Xxxxxxxx to discharge Associate, with or without cause;
or
(b) the right of Associate to terminate his employment with Xxxxxxxx.
11. ACCELERATION OF PAYMENTS. Xxxxxxxx reserves the right to accelerate the
payment of any benefits payable under this Agreement without the consent of
Associate, his estate, his designated beneficiaries, or any other person
claiming through Associate.
12. LEAVES OF ABSENCE. Xxxxxxxx may, in its sole discretion, permit Associate to
take one or more leaves of absence. No such leave of absence shall exceed one
year, however. For purposes of the Agreement, including the provisions relating
to the Service
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Requirement, Associate will be considered employed by Xxxxxxxx during an
authorized leave of absence.
13. LEGAL EFFECT. Neither party makes any representations or warranties, express
or implied, or assumes any responsibility concerning the legal, tax, or other
implications or effects of this Agreement. Xxxxxxxx may take all actions
required by law with respect to any payments due under this Agreement, or any
other compensation or benefits due to Associate, including withholding of tax
from such payments, compensation or benefits.
14. FACILITY OF PAYMENT. If, for any reason, the identity or legal capacity of
any person to whom payments are to be made under this Agreement is in doubt,
Xxxxxxxx may withhold payment until instructed by a final order of a court of
competent jurisdiction. If Associate or any designated beneficiary of Associate
is declared legally incompetent, Xxxxxxxx may make payment of any amounts due
under this Agreement to the person legally charged with his or her care. Any
payment made by Xxxxxxxx in good faith shall fully discharge Xxxxxxxx from its
obligation with respect to that payment.
15. ASSIGNMENT OF RIGHTS. Except as expressly permitted by this Agreement,
neither Associate nor anyone claiming through him may sell, assign, transfer or
pledge the right to receive any payments to which he is or may become entitled
under this Agreement shall be subject to the claims of creditors of Associate or
anyone claiming through him, or to any legal, equitable, or other proceeding or
process for the enforcement of such claims.
16. CORPORATE REORGANIZATION. Xxxxxxxx shall not merge or consolidate with any
other entity unless and until such other entity expressly assumes the
obligations of Xxxxxxxx under this Agreement.
17. SECTION HEADINGS. The Section headings used in this Agreement are for
convenience of reference only, and shall not be considered in construing this
Agreement.
18. AMENDMENT. This Agreement may be amended, but only with the consent of
Xxxxxxxx and Associate (or, after the death of Associate, his designated
beneficiaries or the executor or administrator of any estate to which payments
are owed). Any amendment must be in writing signed by all parties who are to be
legally bound by it. Any attempt to modify or amend this Agreement which does
not satisfy the preceding requirements shall be null and void, and shall have no
legal effect.
19. BINDING EFFECT. Except as otherwise provided in Section 15, this Agreement
shall be binding upon Associate and his heirs, executors, administrators,
assigns and upon anyone claiming through him, and upon Xxxxxxxx and its
successors and assigns.
20. GOVERNING LAW. The laws of the State of Ohio shall, to the extent not
preempted by applicable Federal law, govern the construction of this Agreement.
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TO EVIDENCE THEIR AGREEMENT, Xxxxxxxx, by a duly authorized officer, and
Associate have executed this document on the day and year first above written.
ATTEST: THE XXXXXXXX AND XXXXXXXX COMPANY
______________________________ By: _______________________________
______________________, Secretary Xxxxxxx Xxxxxx, VP Corporate Human Resources
WITNESS: THE "ASSOCIATE"
______________________________ _____________________________________
Associate
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EXHIBIT A
To Non-Qualified Deferred Compensation Agreement
Between The Xxxxxxxx and Xxxxxxxx Company
and ____________________
DESIGNATION OF BENEFICIARY(IES)
I, _______________________, request that Xxxxxxxx xxxx/change its records
to reflect
Beneficiary Percentage
----------- ----------
____________________________________ __________
____________________________________ __________
____________________________________ __________
as the designated beneficiary(ies) of the deferred compensation payments which
at the time of my death may be payable or remain due and payable under the
Agreement dated __________, 2003 (the "Agreement"), and to make such payments to
the above designated beneficiary(ies) as provided under the terms of the
Agreement.
I further request that in the event one or more of the above named
designated beneficiary(ies) predeceases me, payment of the deceased
beneficiary's portion be made in equal shares to the remaining contingent
designated beneficiary(ies) then surviving.
You are instructed to retain the above designated beneficiary(ies) and
contingent designated beneficiary(ies) until such time as you receive a new
"Designation of Beneficiary(ies)" from me which makes a change.
________________________________ ______________________________
(Date)
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