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Exhibit 10(e)
AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT AGREEMENT
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THIS AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT AGREEMENT (this
"Agreement"), is entered into as of the 20th day of March, 1990, by and between
THE XXXXXX & SESSIONS CO., an Ohio corporation with its principal offices at
Cleveland, Ohio (the "Company"), and Xxxx X. Xxxxxxx ("Executive");
WITNESSETH:
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WHEREAS, Executive is presently employed by the Company in a key
executive position and possesses substantial talent, ability and unique
business experience which has been and will continue to be of great value to
the Company; and
WHEREAS, the Company desires to supplement Executive's retirement and
disability benefits commensurate with his experience and value to the Company;
and
WHEREAS, the Company and Executive are parties to a Supplemental
Retirement Agreement dated April 29, 1988 between them (the "Original
Agreement"), and the Company and Executive wish to amend and restate the
Original Agreement;
NOW, THEREFORE, the Company and the Executive hereby agree that the
Original Agreement shall be amended and restated so that, as so amended and
restated, it reads in its entirety as follows (and that the Original Agreement
as in effect prior to this amendment and restatement shall have no further
force or effect);
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
1.1 A "Change of Control" shall be deemed to have occurred if
any of the following events shall occur:
(a) The Company is merged or consolidated or reorganized into or
with another corporation or other legal person, and as a
result of such merger, consolidation or reorganization less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the aggregate
by the holders of Voting Stock (as hereinafter defined) of the
Company immediately prior to such transaction;
(b) The Company sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal
person, and less than a majority of the combined voting power
of the then-outstanding securities of such corporation or
person immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock of the Company
immediately prior to such sale or transfer;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term
"person" is used in Section 13(d) (3) or Section 14(d) (2) of
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the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13D-3 of any
successor rule or regulation promulgated under the Exchange
Act) of securities representing 15% or more of the combined
voting power of the then outstanding securities entitled to
vote generally in the election of Directors of the Company
("Voting Stock");
(d) The company files any report, proxy statement or other
document with the Securities and Exchange Commission pursuant
to the Exchange Act or any rules or regulations presently in
effect or hereafter promulgated under such Act disclosing that
a change in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-existing
contract or transaction; or
(e) If during any period of two consecutive years, individuals who
at the beginning of any such period constitute the Directors
of the Company cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election, by the Company's stockholders of each Director of
the Company first elected during such period was approved by a
vote of at least two-thirds of the Directors of the Company at
the beginning of any such period.
Notwithstanding the foregoing provisions of Section 1.10(c) or 1.10(d) hereof,
a "Change of Control" shall not be deemed to have occurred for purposes of this
Agreement solely because (i) the Company, (ii) an entity in which the Company
directly or indirectly beneficially owns 80% or more of the voting securities,
or (iii) any Company-sponsored employee stock ownership plan or any other
employee benefit plan of the Company, either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D, Schedule
14D-1, Form 8-E or Schedule 14A (or any successor schedule, form or report or
item therein) under the Exchange Act, disclosing beneficial ownership by it of
shares of Voting Stock, whether in excess of 15% or otherwise, or because the
Company reports that a change in control of the Company has or may have
occurred or will or may occur in the future by reason of such beneficial
ownership.
1.2 "Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor thereto.
1.3 "Company" shall mean the Company and any of its
divisions and subsidiaries.
1.4 "Eligible" shall mean that Executive shall have
attained age fifty-five (55) and shall have completed five (5) years of
continuous employment with the Company; provided, however, that if a Change of
Control shall have occurred, Executive shall be deemed to be "Eligible" for all
purposes of this Agreement regardless of his age or length of employment with
the Company.
1.5 Termination "For Cause" shall mean a termination, by
the Company, of Executive's employment with the Company because of:
(a) his confession or conviction of theft, embezzlement or any
misdemeanor (except traffic offenses) or felony; or
(b) his dishonesty in connection with his employment by the
Company as determined by the Board of Directors of the
Company; or
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(c) his unauthorized disclosure of trade secrets, business secrets
or other confidential information or data of the Company; or
(d) his voluntary failure to devote substantially all of his
working time and attention to the conduct of his employment
with the Company; or
(e) his excessive absenteeism without reasonable cause; or
(f) his alcoholism or addiction to drugs; or
(g) his gross misfeasance or malfeasance in connection with his
employment by the Company; or
(h) his behavior contrary to the best interests of the Company
which causes or may reasonably be expected to cause
significant damage to the reputation and/or business of the
Company; or
(i) any other violation by Executive of his employment
relationship with the Company which shall, as determined by
the Board of Directors of the Company, constitute just cause
for termination of Executive's employment.
1.6 "Normal Retirement Date" shall mean the first day of
the month coincident with or next following Executive's attainment of age
sixty-five (65).
1.7 "Other Plan Benefit" shall mean a benefit payable to
Executive under any defined benefit plan, other than the Retirement Plan,
sponsored by the Company, any of its divisions or subsidiaries, or a prior
employer of Executive ("Other Plan"), calculated as if payable to Executive on
a life annuity basis commencing on the date supplemental benefits commence to
Executive under this Agreement (irrespective of any deferral of the
commencement of payment of such benefits thereunder).
1.8 "Permanent Disability" shall have the meaning
accorded the term "total and permanent disability" by the Retirement Plan.
1.9 "Retirement Plan" shall mean The Xxxxxx & Sessions Co.
Salaried Employees' Retirement Plan, as amended from time to time.
1.10 "Retirement Plan Benefit" shall mean the amount actually
payable to Executive under the Retirement Plan pursuant to the terms thereof,
on a life annuity basis, Commencing on the date supplemental benefits commence
to Executive under this Agreement, or, if the payments to Executive under the
Retirement Plan shall not commence until his Normal Retirement Date and the
supplemental benefits under this Agreement commence prior to his Normal
Retirement Date, "Retirement Plan Benefit" shall mean the amount which would
have been payable under the Retirement Plan had Executive not elected to defer
said commencement date.
2. SUPPLEMENTAL RETIREMENT AND DISABILITY BENEFITS
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2.1 RETIREMENT AT NORMAL RETIREMENT DATE. Upon
Executive's retirement on or after his Normal Retirement Date, and provided he
is Eligible on the date of such retirement, the Company shall pay Executive,
commencing on the date of his retirement, a supplemental
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retirement benefit. Such supplemental retirement benefit shall be paid, on
a life annuity basis, in an amount determined pursuant to the following
formula:
(a) The retirement benefit which would have been payable to
Executive, on a life annuity basis, under the Retirement Plan,
without regard, however, to
(i) the limitations on the annual amount of benefits set
forth in Article XV of the Retirement Plan or
(ii) any limitation imposed by Section 401(a) (17) of the
Code on the amount of compensation taken into account
under the Retirement Plan or any Other Plan
if he had completed thirty (30) years of continuous employment
with the Company on or as of the date of his retirement, MINUS
(b) Executive's Retirement Plan Benefit plus any Other Plan
Benefits.
2.2 TERMINATION OF EMPLOYMENT OTHER THAN FOR CAUSE OR AS
A RESULT OF DEATH OR DISABILITY. In the event that Executive's employment with
the Company shall be terminated prior to his Normal Retirement Date other than
For Cause or by reason of his death or Permanent Disability, and provided he is
Eligible on pay Executive, following such the date of such termination, the
Company shall commencing on the first day of the month next termination, a
supplemental retirement benefit. Such supplemental retirement benefit shall be
paid, on a life annuity basis, in an amount determined pursuant to the
following formula:
(a) (i) The retirement benefit which would have been payable
to Executive, on a life annuity basis, under the
Retirement Plan, without regard, however, to
(x) the limitations on the annual amount of
benefits set forth in Article XV of the
Retirement Plan or
(y) any limitation imposed by Section 401(a) (17)
of the Code on the amount of compensation
taken into account under the Retirement Plan
or any Other Plan, if he had completed thirty
(30) years of continuous employment with the
Company on or as of the date of his
termination and his retirement benefits had
commenced as of his termination of
employment, MULTIPLIED BY
(ii) A fraction, the numerator of which shall be the
number of years of the Executive's continuous
employment with the Company until his termination and
the denominator of which shall be the number of years
of continuous employment Executive would have had if
he had remained employed by the Company until his
Normal Retirement Date (provided, however, that if
Executive shall have attained age sixty-two (62) and
is entitled to an unreduced benefit under the
Retirement Plan, the fraction referred to in this
Section 2.2(a) (ii) shall be equal to one (1)); MINUS
(b) Executive's Retirement Plan Benefit plus any Other Plan
Benefits.
2.3 TERMINATION DUE TO DISABILITY.
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(a) Pre-Retirement Disability Benefit. In the event that
Executive's employment with the Company shall be terminated by
reason of his Permanent Disability and he shall become
eligible for payments under the Company's Long-Term Disability
Income Plan (the "LTD Plan") by reason of such Permanent
Disability, and provided he is Eligible on the date of
termination, the Company shall pay Executive, commencing on
the date payments under the LTD Plan commence, a supplemental
disability benefit, on a monthly basis, in an amount
determined pursuant to the following formula:
(i) Sixty percent (60%) of the Executive's basic monthly
earnings (as defined in the LTD Plan), MINUS
(ii) other income benefits (as defined in the LTD Plan),
except family Social Security benefits and the
benefits payable to Executive under this Agreement.
Such supplemental disability payments shall continue until the cessation of
disability benefits under the LTD Plan. However, Executive may elect to have
such supplemental disability payments terminate at such earlier time as he may
choose.
(b) POST-RETIREMENT DISABILITY BENEFIT. (i) In the event that
Executive's employment with the Company shall be terminated by
reason of his Permanent Disability and he shall thereafter
become eligible for a disability retirement benefit pursuant
to Section 6.5 of the Retirement Plan, and provided he is
Eligible on the date of termination, the Company shall pay
Executive, commencing upon the later of his Normal Retirement
Date and the date upon which pre-retirement disability
benefits payable under Section 2.3(a) cease, a supplemental
retirement benefit, on a life annuity basis, in an amount
determined pursuant to the formula set forth in Section 2.1 of
this Agreement.
(ii) In the event that Executive's employment with the
Company shall be terminated by reason of his
Permanent Disability, his disability benefit under
the LTD Plan shall cease after he has attained age 55
but before his Normal Retirement Date and he shall
thereupon become eligible for a disability retirement
benefit and elects an early disability retirement
benefit pursuant to Section 6.5 of the Retirement
Plan, and provided he is Eligible on the date of
termination, the Company shall pay Executive,
commencing on the date such retirement benefits
commence, a supplemental retirement benefit, on a
life annuity basis, in an amount determined pursuant
to the formula set forth in Section 2.2.
3. METHODS OF PAYMENT. If on the date benefits under Section 2
commence Executive is not married, such benefits shall be paid in the Life
Annuity Form described in Article VII of the Retirement Plan. If on the date
such benefits commence Executive is married, such benefits shall be paid in the
Spouse's Annuity Form described in Article VII of the Retirement Plan. This
Section 3 shall not be applicable to pre-retirement disability benefits payable
under Section 2.3(a).
4. POST-DEATH BENEFITS.
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4.1 DEATH OF EXECUTIVE AFTER COMMENCEMENT OF SUPPLEMENTAL
RETIREMENT BENEFITS. In the event of the death of Executive on or after the
date benefits under Section 2 (not including pre-retirement disability benefits
payable under Section 2.3(a)) commence, the Company shall pay to Executive's
beneficiary or beneficiaries the death benefit (including Spouse's Annuity), if
any, provided under the form of payment pursuant to which Executive was
receiving benefits pursuant to Section 3, commencing on the first day of the
month following the month in which Executive dies.
4.2 DEATH OF MARRIED EXECUTIVE PRIOR TO RETIREMENT. In
the event of the death of Executive while he is in the employment of the
Company or a division or subsidiary thereof, after attainment of age 55, while
he is married, and prior to his retirement, the Company shall pay to
Executive's surviving spouse, commencing on the first day of the month
following the month in which Executive dies, a supplemental spouse's benefit,
on a life annuity basis, in an amount determined and calculated as follows:
(a) (i) The death benefit (including Spouse's Annuity) which
would have been payable under Section 9.2 of the
Retirement Plan, without regard, however, to
(i) the limitations on the annual amount of
benefits set forth in Article XV of the
Retirement Plan or
(ii) any limitation imposed by Section 401(a) (17)
of the Code on the amount of compensation
taken into account under the Retirement Plan
or any Other Plan
if he had completed thirty (30) years of continuous
employment with the Company and had retired on or as
of the date of his death, multiplied by
(ii) A fraction, the numerator of which shall be the
number of years of the Executive's continuous
employment with the Company until his date of death
and the denominator of which shall be the number of
years of continuous employment Executive would have
had if he had remained employed by the Company until
his Normal Retirement Date (provided, however, that
if Executive shall have attained age sixty-two (62)
And would be entitled to an unreduced benefit under
the Retirement Plan, the fraction referred to in this
Section 4.2(a) (ii) shall be equal to one (1)); MINUS
(b) The death benefit actually payable under Section 9.2 of the
Retirement Plan plus any Other Plan Benefits payable to the
surviving spouse.
5. FORFEITURE OF BENEFITS.
5.1 TERMINATION FOR CAUSE. In the event that the Company
shall at any time terminate Executive's employment For Cause, it is hereby
agreed that the Company shall have no obligation under this Agreement of any
nature whatsoever and that Executive's rights and the rights of his beneficiary
or beneficiaries hereunder shall be completely and totally forfeited.
5.2 TERMINATION OF EMPLOYMENT PRIOR TO EXECUTIVE BECOMING
ELIGIBLE. In the event that Executive's employment with the Company shall be
terminated for any reason prior
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to Executive's becoming Eligible, it is hereby agreed that the Company shall
have no obligation under this Agreement of any nature whatsoever and that
Executive's rights and the rights of his beneficiary or beneficiaries hereunder
shall be completely and totally forfeited.
5.3 VIOLATION OF NONCOMPETITION CLAUSE. In the event
that Executive shall engage in conduct which constitutes a violation of Section
6 of this Agreement, the Company shall be free from any obligation to make any
payments provided for under this Agreement to Executive or to Executive's
beneficiaries, and any and all such payments shall cease.
6. LIMITATIONS AND RESTRICTIONS ON COMPETITION. During a period
ending on the date of the first to occur of either the attainment by Executive
of age 65 or one (1) year following termination of Executive's employment with
the Company for any reason, Executive shall not, without the prior written
consent of the Company, engage in any Competitive Activity. For purposes of
this Agreement, "Competitive Activity" shall mean Executive's participation,
without the written consent of the Company, in the management of any business
enterprise if such enterprise engages in substantial and direct competition
with the Company and such enterprise's sales of any product or service
competitive with any product or service of the Company amounted to 25% of such
enterprise's net sales for its most recently completed fiscal year and if the
Company's net sales of said product or service amounted to 25% of the Company's
net sales for its most recently completed fiscal year. "Competitive Activity"
shall not include (i) the mere ownership of securities in any such enterprise
and the exercise of rights appurtenant thereto or (ii) participation in the
management of any such enterprise other than in connection with the competitive
operations of such enterprise.
7. MISCELLANEOUS PROVISIONS.
7.1 ASSIGNMENT This Agreement shall be binding upon and
shall inure to the benefit of the Company and its successors and assigns. No
right or interest under this Agreement of Executive (or any person claiming
through or under Executive) other than the surviving spouse of Executive after
he is deceased shall be assignable or transferable in any manner or be subject
to alienation, anticipation, sale, pledge, encumbrance or other legal process
or in any manner be liable for or subject to the debts or liabilities of
Executive. If Executive or any such person (other than the surviving spouse of
Executive after he is deceased) shall attempt to or shall transfer, assign,
alienate, anticipate, sell, pledge or otherwise encumber his benefits hereunder
or any part thereof, or if by reason of his bankruptcy or other event happening
at any time such benefits would devolve upon anyone else or would not be
enjoyed by him, then the Company, in its discretion, may terminate his interest
in any such benefit to the extent the Company considers necessary or advisable
to prevent or limit the effects of such occurrence. Termination shall be
effected by filing a written "termination declaration" with the Company's
records and making reasonable efforts to deliver a copy to Executive or his
legal representative.
As long as Executive is alive, any benefits affected by the
termination shall be retained by the Company and, in the Company's sole and
absolute judgment, may be paid to or expended for the benefit of Executive, his
spouse, his children or any other person or persons in fact dependent upon him
in such a manner as the Company shall deem proper. Upon the death of Executive,
all benefits withheld from him and not paid to others in accordance with the
preceding sentence shall be disposed of according to the provisions of this
Agreement and the Retirement Plan that would apply if he died prior to the time
that all benefits to which he was entitled were paid to him; provided, however,
that if such provisions provide for distribution to Executive's estate or to
his creditors and if Executive shall have descendants, including
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adopted children, then living, distribution shall be made to Executive's then
living descendants, including adopted children, PER STIRPES.
7.2 INTERPRETATION. All questions of interpretation,
construction or application arising under this Agreement shall be decided by
the Board of Directors of the Company, whose decision shall be final and
conclusive upon all persons.
7.3 DETERMINATION OF OTHER PLAN BENEFITS. To facilitate
the determination of Executive's Other Plan Benefits, Executive shall, upon
request by the Company, authorize all prior employers to release to the Company
a record of his plan benefits and provide the Company by April 15 of each year
with a copy of his X-0, X-0X and 1099 forms for the preceding year. If
Executive revokes the authorization to prior employers or fails to submit the
required information to the Company by April 15 of each year, the Company may
suspend payments under this Agreement until such time as the authorization to
prior employers has been reinstated and the required information has been
provided. Any information received from a prior employer regarding benefits
payable to Executive from said employer may be relied upon by the Company and
shall be conclusively presumed to be accurate.
7.4 SAVINGS CLAUSE. In the event that any provision or
term of this Agreement is finally determined by any judicial, quasijudicial or
administrative body to be void or not enforceable for any reason, it is the
intent of the parties hereto that all other provisions and terms of this
Agreement shall remain in full force and effect and that this Agreement shall
be enforceable as if such void or non-enforceable provision or term had never
been a part hereof.
7.5 GOVERNING LAW. This Agreement is executed in and
shall be construed in accordance with and governed by the laws of the State of
Ohio without giving effect to any provision of such laws regarding choice of
laws or conflict of laws.
7.6 NO RIGHTS IN ANY PROPERTY OF COMPANY. The
undertakings of the Company herein constitute merely the unsecured promise of
the Company to make the payments as provided for herein; no property of the
Company is or shall, by reason of this Agreement, be held in trust for
Executive, any beneficiary or any other person; and neither Executive nor any
beneficiary nor any other person shall have by reason of this Agreement any
right, title or interest of any kind in or to any property of the Company;
provided, however, that the Company may transfer assets to the trustee under
the Trust Agreement dated as of March 20, 1990 and between the Company and
National City Bank, as Trustee, and the Trust Agreement for Attorneys' Fees
dated as of March 20, 1990 by and between the Company and National City Bank,
as Trustee, to satisfy its obligations hereunder. It is intended that (i) this
Agreement shall be "unfunded" for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended, (ii) nothing in this
Agreement shall currently constitute a transfer of property for purposes of
Section 83 of the Code, or any successor provision thereto, or shall cause a
currently taxable benefit to be realized by Executive or his beneficiaries
pursuant to the "economic benefit" doctrine and (iii) pursuant to Section 451
of the Code, or any successor provision thereto, amounts payable pursuant to
this Agreement will be includable in the gross income of Executive or his
beneficiaries in the taxable year or years in which such amounts are actually
distributable or made available to Executive or his beneficiaries.
7.7 EMPLOYMENT OF EXECUTIVE BY COMPANY. Nothing herein
shall be construed as an offer or commitment by the Company to continue
Executive's employment with the Company for any period of time.
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7.8 TERMINATION BY COMPANY. The Company may terminate
this Agreement at any time; provided, however, that no such termination shall
adversely affect the rights or benefits accrued by Executive (whether or not
vested) under this Agreement prior to his receipt of notice of such
termination.
7.9 TAX PAYMENT. Notwithstanding any other provision of
this Agreement, unless such action would be expressly prohibited by applicable
law, if any amount paid or payable pursuant to this Agreement is subject to the
excise tax imposed by Section 4999 of the Code. the Company will pay to
Executive an additional amount in cash equal to the amount necessary to cause
the aggregate payments received by Executive and his beneficiaries under this
Agreement, including such additional cash payment (net of all federal, state
and local income taxes and all taxes payable as the result of the application
of Sections 280G and 4999 of the Code), to be equal to the aggregate payments
Executive and his beneficiaries would have received under this Agreement,
excluding such additional payment (net of all federal, state and local income
taxes), as if Sections 280G ad 4999 of the Code (and any successor provisions
thereto) had not been enacted into law.
7.10 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when received. All such communications shall be addressed as
follows:
If to the Company, to:
The Xxxxxx & Sessions Co.
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Secretary
If to Executive, to:
Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxx 00000
provided, however, that if any party or his or its successors shall have
designated a different address by written notice to the other party, then to
the last address so designated.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
as of the day and year first above written.
THE XXXXXX & SESSIONS CO.
By /s/ Xxxxx Xxxxxx
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Vice President-Secretary
& General Counsel
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
