ANCHOR ADVANCED PRODUCTS, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS AGREEMENT
RESTATED AND AMENDED NOVEMBER 25, 1994
This Agreement is made and entered into effective as of January 1, 1993
by and between ANCHOR ADVANCED PRODUCTS, INC. (the "Corporation") and
____________________ ("Executive").
Name of Executive
WHEREAS, in recognition of the Executive's past services to the
Corporation and in order to encourage the continuation of the Executive's
services in the future, the Corporation desires to provide additional
compensation to the Executive upon the Executive's retirement, disability or
death;
NOW, THEREFORE, in consideration of the Executive's continued
performance of services and other good and valuable consideration, the receipt
of which is hereby acknowledged, the Corporation hereby agrees as follows:
1. Definitions. Whenever used in this Agreement, the following words
and phrases shall have the meanings set forth below, unless a different meaning
is plainly required by the context:
(a) "Average Social Security Taxable Wage Base" means the
average (without indexing) of the maximum limitation on wages taken into account
for purposes of computing the Social Security taxes payable with respect to
old-age, survivors and disability insurance under Section 3101(a) of the Code
(as defined below) in effect for each calendar year during the 35-year period
ending with the last day of the calendar year with respect to which such average
is calculated.
(b) "Cause" means (i) the Executive's continuing willful
failure to perform the Executive's duties to the Corporation (other than as a
result of total or partial incapacity due to physical or mental illness), (ii)
gross negligence or malfeasance by the Executive in the performance of the
Executive's duties to the Corporation, or (iii) an act or acts on the
Executive's part constituting a felony under the laws of the United States or
any State thereof which results or was intended to result directly or indirectly
in gain or personal enrichment by the Executive at the expense of the
Corporation; provided, however, if cause for termination is defined in an
employment agreement between the Corporation and the Executive, then the
definition in such agreement shall apply to this Agreement in the place of this
definition.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Credited Service" means the total of (i) the years of
Benefit Service credited to the Executive under the North American Philips Plan
as of May 1, 1990, and (ii) the Executive's years of continuous service with the
Corporation beginning May 1, 1990 until the Executive's date of termination.
(e) "Early Retirement Date" means the first day of the first
month after the Executive both (i) completes 5 years of Credited Service, and
(ii) attains age 55.
(f) "Earnings" means, with respect to any calendar year, the
total cash compensation paid to the Executive by the Corporation during a
calendar year which is currently includible in the Executive's gross income
under the Code, but excluding any expense reimbursements, deferred compensation
payments, lump sum severance payments, stock options, or any distributions from
any long-term incentive plan, or any long-term key- employee compensation
program. "Earnings" also shall include employer contributions made pursuant to a
salary reduction agreement which are not includible in the gross income of the
Executive under Section 125 or 402(a)(8) of the Code.
(g) "Final Average Earnings" means the average of the
Executive's annual Earnings of the five years, selected from the last ten
calendar years in which the Executive has Credited Service, which produces the
highest annual average. If the Executive's actual period of Credited Service is
less than five years, all years will be used.
(h) "Normal Retirement Benefit" means the benefit determined
in accordance with Section 2 of this Agreement.
(i) "Normal Retirement Date" means the first day of the month
next following the Executive's 65th birthday.
(j) "North American Philips Plan" means the North American
Philips Corporation Pension Plan for Salaried Employees as in effect on May 1,
1990.
(k) "Projected Normal Retirement Benefit" means the Normal
Retirement Benefit, but modified so that (i) the years of Credited Service used
to calculate such benefit take into account the years of Credited Service the
Executive would earn assuming the Executive remains employed by the Corporation
until the Executive's Normal Retirement Date and (ii) the Executive's Final
Average Earnings and Average Social Security Taxable Wage Base used to calculate
such benefit are projected to the Executive's Normal Retirement Date, using the
methods and assumptions used from time to time for such purposes under the
Anchor Advanced Products, Inc. Pension Plan for Salaried Employees. [This term
is not defined in Form C]
2. Normal Retirement Benefit. The Normal Retirement Benefit under this
Agreement shall be an amount payable for the life of the Executive equal to
one-twelfth
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(1/12th) of the amount determined under (a) of this Section 2, as reduced by the
amount described in (b) of this Section 2.
(a) The greater of the amount determined under Formula 1 or
Formula 2, below:
FORMULA 1:
----------
Years of X 1.0% X Final Average
Credited Service Earnings
(to a maximum of 43)
PLUS
Years of X 0.6% X Final Average
Credited Service Earnings Above
(to a maximum of 35) the Average
Social Security
Taxable Wage
Base
FORMULA 2:
----------
Years of X 1.1% X Final Average
Credited Service Earnings
(to a maximum of 43)
(b) The Executive's vested accrued benefit under the North
American Philips Plan and any defined benefit plan maintained by the Corporation
as computed (i) without regard to whether distribution of such benefit has
commenced, (ii) at the time benefits become payable to the Executive under this
Agreement, and (iii) in the form of single life annuity payable in annual
installments in accordance with the assumptions and methods used under such
plan.
3. Payment of Retirement Benefits. Except as otherwise provided in this
Agreement, the Normal Retirement Benefit calculated under Section 2, above,
shall be payable to the Executive following the termination of the Executive's
employment for any reason other than Cause only as follows:
(a) Normal or Postponed Retirement. If the Executive's
employment with the Corporation terminates on or after the Executive's Normal
Retirement Date, a monthly
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amount equal to the Normal Retirement Benefit shall be payable to the Executive
commencing as of the first day of the month next following such termination.
(b) Rule of 85 Early Retirement. If the Executive's employment
with the Corporation terminates on or after the Executive's Early Retirement
Date but before the Executive's Normal Retirement Date, and the sum of the
Executive's attained age plus years of Credited Service totals 85 or more on
such date, a monthly amount equal to the Normal Retirement Benefit shall be
payable to the Executive commencing as of the first day of the month next
following such termination.
(c) Other Termination of Employment. If the Executive's
employment with the Corporation terminates under circumstances which do not
satisfy the conditions for payment of benefits described in (a) or (b) of this
Section 3, and the Executive
(i) voluntarily terminates employment on or after the
Executive's completion of 5 years of Credited Service, or
(ii) is terminated by the Corporation for any reason other
than Cause or death,
then benefits shall be payable under this Agreement to the Executive commencing
as of the first day of the month next following the latest of the Executive's
termination date, Early Retirement Date, or the date on which benefit payments
are scheduled to begin to the Executive under any plan described in Section 2(b)
above. Such benefits shall be payable monthly in an amount equal to the Normal
Retirement Benefit as reduced by 0.5% times the number of months from the date
payments are scheduled to begin until the Executive's Normal Retirement Date.
(d) Spousal Survivor Benefit. In lieu of the payment of the
Normal Retirement Benefit payments provided in Section 3(a) to (c) above and in
lieu of the application of Section 4(b) in its entirety, the Executive may elect
to receive, at the times set forth under Sections 3(a) to (c), above, payments
in accordance with this Section 3(d). An election to receive payments in
accordance with this Section 3(d) must be made in writing no later than the
later of (A) the 60th day preceding the Executive's termination of employment,
or (B) the last day of any shorter notice period of termination provided by the
Corporation. Any payments to be made under this Section 3(d) after the last to
survive of the Executive and the Executive's spouse, will be made, if the
Executive is the last survivor, in the manner set forth in Section 4(c) or, if
the spouse is the last survivor, in monthly payments to the estate of the
spouse. The election under this Section 3 is subject to approval by the
Corporation and is to be in such form as prescribed by the Corporation.
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(i) Form. Under the election described above, the monthly
retirement benefit otherwise payable to the Executive during the Executive's
lifetime will be reduced in accordance with the table set forth in Section
3(d)(iv) below and a percentage of such reduced monthly benefit equal to 50%,
66-2/3%, 75% or 100% (as elected by the Executive and approved by the
Corporation) will be paid after the Executive's death to the surviving spouse of
the Executive for such spouse's lifetime. Payment to the surviving spouse will
begin with the first day of the month next following that in which the
Executive's death occurs. All payments under Section 3(d) will be guaranteed for
a 120-month period commencing with the month such payments begin under the terms
of this Agreement in an amount equal to the monthly amount payable to the last
surviving annuitant.
(ii) Death Before Payment. If the Executive, having
elected with the Corporation's approval the survivor form described in Section
3(d)(i), dies on or after the Executive's Early Retirement Date, and after the
Executive's termination of employment, but before retirement payments under this
Agreement had begun, such payments will be made to the surviving spouse as
though the Executive had begun to receive payments under this Agreement on the
day before the Executive's death.
(iii) Spouse; Death of Spouse. For purposes of this
Section 3(d), the spouse of the Executive will be the spouse to whom the
Executive is lawfully wedded on the earlier of the date of the Executive's death
or the date benefit retirement payments under this Agreement to the Executive
begin. In the event of the simultaneous death of the Executive and the
Executive's spouse, the spouse will be deemed to have survived the Executive. If
such spouse dies:
(A) before the date on which payments are to begin
under this Agreement, the retirement benefit payable to the Executive will be
the same as if no election had been made under this Section, or
(B) after benefit payments begin under this
Agreement, the retirement benefit to the Executive shall continue reduced as if
such death had not occurred, and, upon the Executive's death, except for any
remaining payments to be made under the guaranty of 120 monthly payments in
Section 3(d)(i), above, no further benefits will be paid hereunder.
(iv) Table. The amount of reduced benefit payable under
this Section 3(d) will be determined by multiplying the monthly retirement
benefit payable to the Executive, as though this Section were not applicable, by
the appropriate factor from the following table:
Percentage to be continued
to surviving spouse................ 50% 66-2/3% 75% 100%
1. Factor before reflecting
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adjustment, if any, for
difference in ages............. .9500 .9200 .9000 .8600
2. Adjustment (reduction)
for each full year in excess
of five years that the
surviving spouse is younger
than the Executive............. .0050 .0067 .0075 .0100
3. Adjustment (increase) for
each full year in excess
of five year that the surviving
spouse is older than
the Executive ................. .0050 .0067 .0075 .0100
[Form B (d) Spousal Survivor Benefit. In lieu of the payment of the Normal
Retirement Benefit payments provided in Section 3(a) to (c) above and in lieu of
the application of Section 4(b) in its entirety, the Executive may elect to
receive, at the times set forth under Sections 3 (a) to (c), above, payments in
accordance with this Section 3(d). An election to receive payments in accordance
with this Section 3(d) must be made in writing no later than the later of (A)
the 60th day preceding the Executive's termination of employment, or (B) the
last day of any shorter notice period of termination provided by the
Corporation. Such election is subject to approval by the Corporation and is to
be in such form as prescribed by the Corporation.
(i) Form. Under the election described above, the monthly
retirement benefit otherwise payable to the Executive during the Executive's
lifetime will be reduced in accordance with the table set forth in Section 3(d)
(iv) below and a percentage of such reduced monthly benefit equal to 50%,
66-2/3%, 75% or 100% (as elected by the Executive and approved by the
Corporation) will be paid after the Executive's death to the surviving spouse of
the Executive for such spouse's lifetime. Payment to the surviving spouse will
begin with the first day of the month next following that in which the
Executive's death occurs.
(ii) Death Before Payment. If the Executive, having
elected with the Corporation's approval the survivor form described in Section
3(d)(i), dies on or after the Executive's Early Retirement Date, and after the
Executive's termination of employment, but before retirement payments under this
Agreement had begun, such payments will be made to the surviving spouse as
though the Executive had begun to receive payments under this Agreement on the
day before the Executive's death.
(iii) Spouse; Death of Spouse. For purposes of this
Section 3(d), the spouse of the Executive will be the spouse to whom the
Executive is lawfully wedded on the
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earlier of the date of the Executive's death or the date benefit retirement
payments under this Agreement to the Executive begin. If such spouse dies:
(A) before the date on which payments are to begin
under this Agreement, the retirement benefit payable to the Executive will be
the same as if no election had been made under this Section, or
(B) after benefit payments begin under this
Agreement, the retirement benefit to the Executive shall continue reduced as if
such death had not occurred, and, upon the Executive's death, no further
benefits will be paid hereunder.
(iv) Table. The amount of reduced benefit payable under
this Section 3(d) will be determined by multiplying the monthly retirement
benefit payable to the Executive, as though this Section were not applicable, by
the appropriate factor from the following table:
Percentage to be continued
to surviving spouse................ 50% 66-2/3% 75% 100%
1. Factor before reflecting
adjustment, if any, for
difference in ages .9500 .9200 .9000 .8600
2. Adjustment (reduction) for
each full year in excess
of five years that the
surviving spouse is younger
than the Executive............... .0050 .0067 .0075 .0100
3. Adjustment (increase) for
each full year in excess
of five year that the
surviving spouse is older
than the Executive............... .0050 .0067 .0075 .0100]
[Form C (d) Spousal Survivor Benefit. In lieu of the payment of the Normal
Retirement Benefit payments provided in Section 3(a) to (c) above and in lieu of
the application of Section 4(b) in its entirety, the Executive may elect to
receive, at the times set forth under Sections 3(a) to (c), above, payments in
accordance with this Section 3(d). An election to receive payments in accordance
with this Section 3(d) must be made in writing no later than the later of (A)
the 60th day preceding the Executive's termination of employment, or (B) the
last day of any shorter notice period of termination provided by the
Corporation. Such election is
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subject to approval by the Corporation and is to be in such form as prescribed
by the Corporation.
(i) Form. Under the election described above, the monthly
retirement benefit otherwise payable to the Executive during the Executive's
lifetime will be reduced in accordance with the table set forth in Section 3(d)
(iv) below and a percentage of such reduced monthly benefit equal to 50%,
66-2/3%, 75% or 100% (as elected by the Executive and approved by the
Corporation) will be paid after the Executive's death to the surviving spouse of
the Executive for such spouse's lifetime. Payment to the surviving spouse will
begin with the first day of the month next following that in which the
Executive's death occurs.
(ii) Death Before Payment. If the Executive, having
elected with the Corporation's approval the survivor form described in Section
3(d)(i), dies on or after the Executive's Early Retirement Date, and after the
Executive's termination of employment, but before retirement payments under this
Agreement had begun, such payments will be made to the surviving spouse as
though the Executive had begun to receive payments under this Agreement on the
day before the Executive's death.
(iii) Spouse; Death of Spouse. For purposes of this
Section 3(d), the spouse of the Executive will be the spouse to whom the
Executive is lawfully wedded on the earlier of the date of the Executive's death
or the date benefit retirement payments under this Agreement to the Executive
begin. If such spouse dies:
(A) before the date on which payments are to begin
under this Agreement, the retirement benefit payable to the Executive will be
the sameas if no election had been made under this Section, or
(B) after benefit payments begin under this
Agreement, the retirement benefit to the Executive shall continue reduced as if
such death had not occurred, and, upon the Executive's death, no further
benefits will be paid hereunder.
(iv) Table. The amount of reduced benefit payable under
this Section 3(d) will be determined by multiplying the monthly retirement
benefit payable to the Executive, as though this Section were not applicable, by
the appropriate factor from the following table:
Percentage to be continued
to surviving spouse........................... 50% 66-2/3% 75% 100%
1. Factor before reflecting
adjustment, if any, for
difference in ages........................ .9500 .9200 .9000 .8600
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2. Adjustment (reduction)
for each full year in excess
of five years that the
surviving spouse is younger
than the Executive........................ .0050 .0067 .0075 .0100
3. Adjustment (increase) for
each full year in excess
of five year that the surviving
spouse is older than
the Executive ............................ .0050 .0067 .0075 .0100]
[Form D (d) Spousal Survivor Benefit. In lieu of the payment of the Normal
Retirement Benefit payments provided in Section 3(a) to (c) above and in lieu of
the application of Section 4(b) in its entirety, the Executive may elect to
receive, at the times set forth under Sections 3(a) to (c), above, payments in
accordance with this Section 3(d). An election to receive payments in accordance
with this Section 3(d) must be made in writing no later than the later of (A)
the 60th day preceding the Executive's termination of employment, or (B) the
last day of any shorter notice period of termination provided by the
Corporation. Such election is subject to approval by the Corporation and is to
be in such form as prescribed by the Corporation.
(i) Form. Under the election described above, the monthly
retirement benefit otherwise payable to the Executive during the Executive's
lifetime will be reduced in accordance with the table set forth in Section
3(d)(iv) below and a percentage of such reduced monthly benefit equal to 50%,
66-2/3%, 75% or 100% (as elected by the Executive and approved by the
Corporation) will be paid after the Executive's death to the surviving spouse of
the Executive for such spouse's lifetime. Payment to the surviving spouse will
begin with the first day of the month next following that in which the
Executive's death occurs.
(ii) Death Before Payment. If the Executive, having
elected with the Corporation's approval the survivor form described in Section
3(d)(i), dies on or after the Executive's Early Retirement Date, and after the
Executive's termination of employment, but before retirement payments under this
Agreement had begun, such payments will be made to the surviving spouse as
though the Executive had begun to receive payments under this Agreement on the
day before the Executive's death.
(iii) Spouse; Death of Spouse. For purposes of this
Section 3(d), the spouse of the Executive will be the spouse to whom the
Executive is lawfully wedded on the earlier of the date of the Executive's death
or the date benefit retirement payments under this Agreement to the Executive
begin. If such spouse dies:
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(A) before the date on which payments are to begin
under this Agreement, the retirement benefit payable to the Executive will be
the same as if no election had been made under this Section, or
(B) after benefit payments begin under this
Agreement, the retirement benefit to the Executive shall continue reduced as if
such death had not occurred, and, upon the Executive's death, no further
benefits will be paid hereunder.
(iv) Table. The amount of reduced benefit payable under
this Section 3(d) will be determined by multiplying the monthly retirement
benefit payable to the Executive, as though this Section were not applicable, by
the appropriate factor from the following table:
Percentage to be continued
to surviving spouse........................... 50% 66-2/3% 75% 100%
1. Factor before reflecting
adjustment, if any, for
difference in ages....................... .9500 .9200 .9000 .8600
2. Adjustment (reduction)
for each full year in excess
of five years that the
surviving spouse is younger
than the Executive....................... .0050 .0067 .0075 .0100
3. Adjustment (increase) for
each full year in excess
of five year that the surviving
spouse is older than
the Executive ........................... .0050 .0067 .0075 .0100]
[Form E (d) Spousal Survivor Benefit. In lieu of the payment of the Normal
Retirement Benefit payments provided in Section 3(a) to (c) above and in lieu of
the application of Section 4(b) in its entirety, the Executive may elect to
receive, at the times set forth under Sections 3(a) to (c), above, payments in
accordance with this Section 3(d). An election to receive payments in accordance
with this Section 3(d) must be made in writing no later than the later of (A)
the 60th day preceding the Executive's termination of employment, or (B) the
last day of any shorter notice period of termination provided by the
Corporation. Such election is subject to approval by the Corporation and is to
be in such form as prescribed by the Corporation.
- 10 -
(i) Form. Under the election described above, the monthly
retirement benefit otherwise payable to the Executive during the Executive's
lifetime will be reduced in accordance with the table set forth in Section
3(d)(iv) below and a percentage of such reduced monthly benefit equal to 50%,
66-2/3%, 75% or 100% (as elected by the Executive and approved by the
Corporation) will be paid after the Executive's death to the surviving spouse of
the Executive for such spouse's lifetime. Payment to the surviving spouse will
begin with the first day of the month next following that in which the
Executive's death occurs.
(ii) Death Before Payment. If the Executive, having
elected with the Corporation's approval the survivor form described in Section
3(d)(i), dies on or after the Executive's Early Retirement Date, and after the
Executive's termination of employment, but before retirement payments under this
Agreement had begun, such payments will be made to the surviving spouse as
though the Executive had begun to receive payments under this Agreement on the
day before the Executive's death.
(iii) Spouse; Death of Spouse. For purposes of this
Section 3(d), the spouse of the Executive will be the spouse to whom the
Executive is lawfully wedded on the earlier of the date of the Executive's death
or the date benefit retirement payments under this Agreement to the Executive
begin. If such spouse dies:
(A) before the date on which payments are to begin
under this Agreement, the retirement benefit payable to the Executive will be
the same as if no election had been made under this Section, or
(B) after benefit payments begin under this
Agreement, the retirement benefit to the Executive shall continue reduced as if
such death had not occurred, and, upon the Executive's death, no further
benefits will be paid hereunder.
(iv) Table. The amount of reduced benefit payable under
this Section 3(d) will be determined by multiplying the monthly retirement
benefit payable to the Executive, as though this Section were not applicable, by
the appropriate factor from the following table:
Percentage to be continued
to surviving spouse........................... 50% 66-2/3% 75% 100%
1. Factor before reflecting
adjustment, if any, for
difference in ages........................ .9500 .9200 .9000 .8600
2. Adjustment (reduction)
for each full year in excess
of five years that the
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Percentage to be continued
surviving spouse is younger
than the Executive........................ .0050 .0067 .0075 .0100
3. Adjustment (increase) for
each full year in excess
of five year that the surviving
spouse is older than
the Executive ............................ .0050 .0067 .0075 .0100]
4. Death Benefits.
(a) Death Prior to Termination of Employment. If the Executive
dies while employed by the Corporation, a monthly amount equal to the Projected
Normal Retirement Benefit shall be payable to the Executive's designated
beneficiary for a period of 90 months commencing as of the first day of the
first month next following the Executive's death.
(b) Death After Termination of Employment. In the event the
Executive who has attained Early Retirement Date dies after terminating
employment, a monthly amount equal to the Executive's Normal Retirement Benefit
shall be payable to the Executive's designated beneficiary as follows:
(i) if the Executive's death occurs before payment has
begun, payment shall be made for the 120-month period commencing as of the first
day of the first month next following the E executive's death;
(ii) if the Executive's death occurs after payment has
begun but before the end of the 120-month period commencing on the date on which
payment first began, payment shall be made for the remainder of such 120-month
period; or
(iii) if the Executive's death occurs after payment has
begun but after the end of the 120-month period commencing on the date on which
payment first began, the Company shall not be obligated to make any further
payments.
(c) Payment to Designated Beneficiary. In the event that the
Executive does not designate a beneficiary, or if the Executive's designated
beneficiary does not survive the Executive, then the benefits payable under
paragraph (a) or (b) above shall be paid to the Executive's estate in a single
lump sum payment (as determined by using the actuarial methods and assumptions
then in effect under the Anchor Advanced Products, Inc. Pension Plan for
Salaried Employees). In the event that the Executive's designated beneficiary
dies after payment has begun but before the end of the payment period set forth
in paragraph (a) or (b) above, as applicable, then any remaining benefits
payable under this Section 4 shall be payable to such beneficiary's estate.
- 12 -
(d) Death Prior to Early Retirement Date. In the event the
Executive dies after terminating employment but prior to the Executive's Early
Retirement Date, no payments shall be due under this Agreement and the Company
shall not be obligated to make any payments under this Agreement.
5. Benefits Payable Upon Certain Corporate Events. Notwithstanding any
other provision of this Agreement to the contrary, the Executive shall be
entitled to benefits under this Section 5 if the conditions described in (a) and
(b) below occur:
(a) the merger, reorganization or consolidation of the
Corporation with or into any other corporation or entity; or the Corporation
sells substantially all of its business or assets to any other corporation or
entity; or the exchange of all or substantially all of the assets of the
Corporation for the securities of any other corporation or entity; or the
acquisition by any other corporation or entity of 50% or more of the
Corporation's then outstanding shares of voting stock; and
(b) the successor corporation or other entity described in
(a), above, does not expressly assume in writing the obligations and liabilities
under this Agreement.
In such event, the Executive shall receive an immediate single lump sum payment
in an amount equal to the actuarial equivalent of the Executive's Normal
Retirement Benefit as determined by using the actuarial methods and assumptions
then in effect under the Anchor Advanced Products, Inc. Pension Plan for
Salaried Employees.
6. Withholding Taxes. The Corporation may withhold from any amounts
payable to the Executive under this Agreement all applicable federal, state,
city or other taxes.
7. Miscellaneous Provisions.
(a) Affiliates. For purposes of this Agreement, the term
"Corporation" shall be deemed to include any corporation which is a member of
the same controlled group within the meaning of Section 414(b) of the Code or is
under common control within the meaning of Section 414(c) of such Code with the
Corporation and any other business for which the Executive performs services at
the request of the Corporation.
(b) Right to Terminate Employment. Nothing contained in this
Agreement shall restrict any right which the Corporation may have to terminate
the employment of the Executive at any time, with or without cause.
(c) No Claim Against Assets. Nothing in this Agreement shall
be construed as giving the Executive any claim against any specific assets of
the Corporation or as imposing any trustee relationship upon the Corporation in
respect of the Executive. The Corporation shall not be required to segregate any
of its assets in order to provide for the satisfaction of its
- 13 -
obligations hereunder, and the Executive's rights under this Agreement shall be
limited to those of an unsecured general creditor of the Corporation.
(d) Mental or Physical Incompetency. If the Executive or any
person entitled to benefits under this Agreement is incompetent by reason of
physical or mental disability, as established by a court of competent
jurisdiction, the Corporation shall cause all payments thereafter becoming due
to such person to be made to such person's legal guardian or representative for
such person's benefit, without responsibility to follow the application of
amounts so paid. Payments made pursuant to this paragraph (d) shall completely
discharge the Corporation.
(e) Notice. All notices, requests, demands and other
communications required or permitted to be given by either party to the other
party by this Agreement shall be in writing and shall be deemed to have been
duly given when delivered personally or received by certified or registered
mail, return receipt requested, postage prepaid, at the address of the other
party, as follows:
To the Corporation:
-------------------
Anchor Advanced Products, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention:
To the Executive:
-----------------
At the address indicated under the Executive's signature.
The parties may change the addresses listed above by providing
notice to the other party in accordance with the requirements of this paragraph
(e).
(f) Entire Agreement; Amendment. This Restated and Amended
Supplemental Executive Retirement Benefits Agreement contains the entire
agreements, understandings, warranties and representations by and between the
parties hereto with respect to the benefits described hereunder and supersedes
any and all existing agreements between the Executive and the Corporation
relating to the benefits described hereunder. This Agreement may not be amended,
modified or terminated except by a written agreement signed by both parties.
(g) Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver thereof or deprive
- 14 -
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
(h) Assignment. Except as otherwise provided in this
Agreement, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, representatives, successors and
assigns. This Agreement shall not be assignable by the Executive, and shall be
assignable by the Corporation only to any financially solvent entity resulting
from the reorganization, merger or consolidation of the Corporation with any
other entity or any entity to or with which the Corporation's business or
substantially all of its business or assets may be sold, exchanged or
transferred. Any assignment made in violation of this paragraph shall be null
and void.
(i) Applicable Law. This Agreement shall at all times be
governed by and construed, interpreted and enforced in accordance with the laws
of the State of Delaware (but without regard to Delaware laws with respect to
choice of laws).
(j) Severability. If any term or provision of this Agreement
or the application hereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
(k) Headings. Section headings are used herein for convenience
of reference only and shall not affect the meaning of any provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year set forth below.
ANCHOR ADVANCED PRODUCTS, INC.
By:
-------------------------------
Title:
----------------------------
EXECUTIVE
Printed Name:
---------------------
- 15 -
Signature:
------------------------
Date:
-----------------------------
Address:
--------------------------
--------------------------
--------------------------
- 16 -
[Anchor Advanced Products, Inc. Letterhead]
May 7, 1996
Re: Supplemental Executive Retirement Benefits Agreement
Restated and Amended November 25, 1994
----------------------------------------------------
Dear :
With reference to the Supplemental Executive Retirement Benefits
Agreement Restated and Amended November 25, 1994 (the "Agreement") between you
and Anchor Advanced Products, Inc. (the "Corporation"), a copy of which is
attached to this letter, in consideration of the continued performance of your
valuable service to the Corporation and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Corporation proposes to modify the Agreement as stated in this letter.
For purposes of determining "Credited Service," "attained age" or any
other matter under the Agreement (other than for Sections 1(a) and 2(b) and for
determinations respecting the table in Section 3(d)(iv)), the date of the
cessation of your employment with the Corporation for any reason other than for
Cause will be the later of (1) December 31, 1998,** or (2) the actual date on
which your employment with the Corporation ceases.
The terms used in this letter, signified by capital letters or
quotation marks, shall have the same meanings as given to such terms in the
Agreement. Except as modified by this letter, all of the terms and conditions
of the Agreement shall remain in full force and effect and the Agreement, as so
modified, may be further amended only by a writing between the parties making
specific reference to the Agreement.
If you agree to the above modification of the Agreement, please so
indicate by signing the enclosed copy of this letter in the space provided and
returning the copy to the undersigned.
------------------
**December 31, 1998 for Messrs. Xxxxxxxx and Xxxxxx;
December 31, 1997 for Messrs. Xxxxxxxx and Xxxxx and Ms. Best
Xx. Xxxxx Xxxxxx*** at the Xxxxxx X. Xxx Company, whereupon the Agreement shall
become modified as set forth in this letter.
Very truly yours,
ANCHOR ADVANCED PRODUCTS, INC.
By: ****
-----------------------------------
Xxxxx X. Xxxxxx,
Director, on behalf of its Board of
Directors
By:
---------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Chairman, President and CEO
Modification of Agreement
as set forth in this letter
is agreed to:
By:( )
-------------------------------
Date:
-------------------------------
/cb
Enclosure
--------------------
*** To be returned to Xx. Xxxxxxxx at the Corporation by all recipients except
Xx. Xxxxxxxx.
****To be signed by Xx. Xxxxxx only for the letter to be received by Xx.
Xxxxxxxx. All others to be signed by Xx. Xxxxxxxx only.
