EXHIBIT 10.18
FIRST AMENDMENT TO
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Amendment ("Amendment") is made this 30 day of October, 1996, by and
between Xxxxxxxxx X. Xxxxx, XX ("Executive") and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation ("Company").
W I T N E S S E T H:
WHEREAS, Executive and Company entered into an Amended and Restated
Supplemental Executive Retirement Agreement ("Agreement") as of November 1,
1993; and
WHEREAS, in connection with the pending acquisition of the Company (and/or
Xxxxxx Holdings Corp. ("Holdings")), pursuant to the Agreement and Plan of
Merger dated as of September 18, 1996, by and between TWCC Acquisition
Corporation and The Xxxxxxx Xxxxxx Company ("Merger"), the parties have agreed
to amend the Agreement to delete all provisions relating to (i) a current or
future Change of Control, or (ii) forfeiture of benefits upon a termination for
Cause;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Agreement is hereby
amended as follows, effective as of the day and year first written above.
1. DEFINITIONS. Unless expressly defined in this Amendment, the
capitalized terms used herein have the definitions attributed to them in the
Agreement, and the definitions of those terms in the Agreement are incorporated
herein by reference.
2. NO CHANGE OF CONTROL. The parties hereto expressly agree that the
acquisition of the Company and/or Holdings to be effected pursuant to the Merger
will not trigger any additional rights, vesting, benefits, or funding under the
Agreement or under the related Trust Agreement dated as of August 1, 1994, by
and between the Company and Wachovia Bank of Georgia, N.A. ("Trust Agreement"),
notwithstanding any provision of the Agreement or the Trust Agreement to the
contrary.
3. VESTING. Section 7 of the Agreement is amended to delete all
references to a Change of Control and to termination for Cause. Section 7, as
amended, shall read as follows:
7. VESTING. Subject to the conditions below and in Executive's
Employment Agreement, Executive shall be fully vested in all
benefits pursuant to this Agreement upon his completion of three
full "years of service" (as defined below) with the Company. In
addition, Executive shall be fully vested in such benefits upon
his death, termination of employment
by the Company by reason of Executive's Disability, or his
termination of employment by the Company Without Cause. Prior to
Executive's completion of three full years of service with the
Company or the occurrence of an event described in the preceding
sentence, Executive shall not be vested in any portion of his
benefits hereunder.
4. EARLY RETIREMENT. Section 13(a) of the Agreement, relating to
early retirement benefits, is amended to delete the special Change in Control
provisions. Section 13(a), as amended, shall read as follows:
(a) If Executive's employment with the Company terminates prior
to his attainment of age 65 years (including due to his death),
his retirement benefits (if any) prior to reduction by amounts,
if any, described in subparagraph 2(c) above shall be multiplied
by a fraction, the numerator of which shall be 26 minus the
number of full years until the Executive would attain (or would
have attained, in the case of his death) age 65 years and the
denominator of which shall be 25; PROVIDED, that in no event
shall the foregoing fraction exceed 1. After application of the
foregoing fraction, the Executive's benefits shall be reduced by
the amounts, if any, described in subparagraph 2(c) above.
5. LUMP SUM. Section 17(d) of the Agreement is amended to delete the
Change of Control provisions. Section 17(d), as amended, shall read as follows:
(d) LUMP SUM. If Executive dies while still employed by the
Company, his spouse as of his death may elect to receive his
benefits hereunder in the form of the lump sum actuarially
equivalent value of his monthly benefits (payable at the
Executive's normal retirement date) as soon as reasonably
practicable after Executive's death.
6. TRUST FUNDING. Section 22 of the Agreement is amended to delete
the Change of Control provisions. Section 22, as amended, shall read as follows:
22. ESTABLISHMENT OF TRUST. The parties hereto agree that as
soon as reasonably practicable, the Company shall establish a trust for the
purpose of holding assets to be used in paying benefits established pursuant to
this Agreement (the "Trust") by executing the trust agreement attached as
Exhibit C to the Employment Agreement. The Company shall make annual cash
contributions to the Trust on or before December 31 of each calendar year with
the last contribution to be made to the Trust on or before December 31, 1999,
subject to the conditions of this paragraph 22. The amount of each such annual
contribution shall be actuarially determined by the Company in its sole
discretion, taking into account the actuarial present value (computed using the
assumptions set forth in paragraph 19) as of the date of contribution of the
Executive's projected normal retirement benefit at age 65 (i.e., assuming that
Executive would have become fully vested in all benefits accrued under this
Agreement and his employment with the Company would not have terminated prior to
his attaining age 65), if any, hereunder, the market value of assets, if any, in
the Trust as of such date, the actual rate of return on assets in the Trust up
to
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such date and the projected future cost of the Company's obligations under
paragraph 21 (assuming the Commencement Date is Executive's normal retirement
date) based on the prevailing income tax rates. The Company may employ actuaries
or other consultants to compute the amount of any such annual contribution. To
the extent the Company (or its actuaries or consultants) determines that in any
calendar year in which the Company would otherwise be required to make a
contribution to the Trust, actuarially no contribution is required, the Company
shall not be required to make any contribution to the Trust for such year.
Notwithstanding anything in this Agreement to the contrary, (i) the Company may,
upon written notice to the trustee of the Trust that all amounts payable to or
with respect to the Executive under this Agreement have been fully paid or
otherwise provided for, require the trustee to return all residual assets of the
Trust to the Company, and (ii) the Company may at any time direct the trustee to
return to the Company the amount of actuarial overfunding in the Trust
(regardless of whether the Executive is then entitled to commence receipt of
benefits under this Agreement), the amount of such overfunding to be determined
by the Company.
7. TRUSTEE NOTICE. Section 31 of the Agreement is amended to delete any
reference to a Change of Control, Section 31, as amended, shall read as follows:
31. NOTICE TO TRUSTEE. The Company shall immediately provide written
notice to the trustee of the Trust upon the occurrence of an
Insolvency Event.
8. CONTINUED EFFECTIVENESS. Except as amended by this Amendment, the
Agreement continues in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment effective as
of the day and year first written above.
THE XXXXXXX XXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxx
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Its: Sr. VP - Secretary
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EXECUTIVE:
/s/ Xxxxxxxxx X. Xxxxx, XX
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XXXXXXXXX X. XXXXX, XX
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