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Exhibit 10.17
ROCK OF AGES CORPORATION
SALARY CONTINUATION AGREEMENT
AGREEMENT entered into this 3rd day of January, 1996, and effective
January 1, 1996, by and among ROCK OF AGES CORPORATION, a Vermont corporation
having its principal place of business at Main Street, Graniteville, Barre,
Vermont 05654 (hereinafter referred to as the "Company") and ROCK OF AGES
QUARRIES, INC., a Vermont corporation having its principal place of business at
Main Street, Graniteville, Barre, Vermont 05654 (hereinafter referred to as
"ROAQ") and XXXXXX XXXXXXX residing at 00 Xxxxxxxxxxx Xxxxxx, Xxxxx, XX 00000
(hereinafter referred to as the "Employee").
WITNESSETH:
WHEREAS, the Employee is employed by the Company and by reason thereof
has acquired experience and knowledge of considerable value to the Company; and
WHEREAS, Employee requires additional inducement to agree to the
non-competition and related provisions of the Employment Agreement (the
"Employment Agreement") that he is concurrently entering into with Company, and
such inducement is intended to be provided hereby; and
WHEREAS, the benefits provided herein are offered to Employee in
replacement of the benefits to have been provided to Employee under a certain
Deferred Compensation Agreement, effective as of December 1, 1994, (the "AFCO
Agreement") between Employee and Xxxxxxxx-Xxxxxxx Company, Inc. ("AFCO") and by
ROAQ as successor in interest of AFCO under the AFCO Agreement; and
WHEREAS, the Company and the Employee wish to enter into this Salary
Continuation Agreement ("Agreement"), intended to offer an inducement to the
Employee to remain in the employ of the Company by compensating the Employee
beyond his regular salary for services which the Employee will hereafter render;
NOW, THEREFORE, in consideration of the foregoing, the Company and the
Employee do hereby mutually agree as follows:
1. Benefits.
(a) Salary on Retirement. Upon termination of the Employment
Agreement; for any reason other than death ("Retirement"), then
beginning in the first month after Retirement the Company will pay to
the Employee a yearly benefit of Fifty Thousand and 00/100 Dollars
($50,000) in equal monthly installments. Such monthly benefit shall be
payable in the form of an annuity for a period of twenty (20) years
from the date of the Employee's Retirement. If the Employee dies before
the
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end of the twenty (20) year period, the benefit shall continue to be
payable for the balance of the twenty (20) year period to the
Employee's spouse or other beneficiary as discussed in and designated
pursuant to Section 2 (discussing the payment of benefits upon the
Employee's death before Retirement).
(b) Other Benefits on Retirement. Beginning in the month of
his Retirement, the Company will: (i) grant the Employee the use of a
company car of a quality comparable to the car used by the Employee
during his active employment for so long as the Employee retains a
valid Vermont driver's license from a state of the United States and/or
until his death, and (ii) pay the Employee's health insurance premium
until his death for a Medicare supplement policy which will, when
combined with the Employee's Medicare benefits, afford the Employee
health insurance coverage substantially similar to the coverage
afforded the Employee in the last year of his active employment by the
Company.
2. Death Benefits.
(a) Benefits. If the Employee dies while employed by the
Company or an affiliate thereof, the Employee's beneficiary or
beneficiaries shall receive the Fifty Thousand and 00/100 Dollar per
year benefit payable in equal monthly installments for a period of
twenty (20) years from the date of the Employee's death. If the
Employee was married at the time of his death, such monthly benefit
shall be paid to the surviving spouse in the form of a one hundred
percent (100%) survivor annuity for the twenty (20) years. If the
Employee was unmarried at the time of death, monthly payments shall be
made to the beneficiary or beneficiaries designated in accordance with
Section 2(b).
(b) Designation of Beneficiary. The Employee may by written
notice to the Company designate one or more beneficiaries (including a
trust or trusts) to receive any non-spousal payments due under
paragraph (a) above, and the proportionate share to be paid to each
beneficiary if more than one is designated. The Employee may also
designate contingent beneficiaries to receive benefits should the
Employee outlive the primary beneficiaries. If the Employee has
designated more than one beneficiary, the benefits will be divided
among the beneficiaries in any proportion designated by the Employee,
and equally if no proportions have been designated. If more than one
primary beneficiary has been designated and a primary beneficiary dies
before all benefits are paid, benefits will thereafter be divided and
paid equally among any surviving primary beneficiaries unless the
Employee otherwise designates. If all primary beneficiaries have died
before all benefits are paid, the same will thereafter be divided and
paid equally among any surviving contingent beneficiaries unless the
Employee otherwise designates. If no beneficiaries are designated or if
none of the beneficiaries designated survives the Employee, then
benefits will be paid to the Employee's spouse (unless divorce or
separation proceedings are then in progress), or if none, to his
descendants, or if none, to his parents, or if none, to his estate.
3. Insurance. If the Company or any affiliate thereof shall acquire an
insurance policy or any other asset in connection with its liabilities
hereunder, it is expressly understood and agreed that neither the Employee nor
any beneficiary thereof shall have any right with respect to, or claim against,
such policy or other asset, except as expressly provided by the
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terms of such policy or in the title to such other asset. Such policy or asset
shall not be deemed to be held under any trust for the benefit of the Employee
or his or her beneficiaries or to be held in any way as collateral security for
the fulfilling of the obligations of the Company or any affiliate thereof
hereunder, except as may be expressly provided by the terms of such policy or
title to such other asset, which shall otherwise be and remain general,
unpledged, unrestricted assets of the owner thereof. Any rights accruing to the
Employee or any other person hereunder are solely those of any unsecured general
creditor of the Company.
4. Interpretation; Termination of AFCO Agreement. The Employee's
Employment Agreement with the Company permits the termination of the Employee's
services at will. For all purposes of this Agreement the Employee will be deemed
to have been employed by the Company for at least one year during which the
Employee will be deemed to have received all compensation and benefits under the
Employment Agreement as provided therein, provided that such assumption shall
not effect a delay in the commencement of benefits under this Agreement. The
Employee, the Company and ROAQ hereby agree that the AFCO Agreement is hereby
terminated and replace hereby.
5. Administration. The Company shall be the Administrator and Named
Fiduciary hereunder. The Company may delegate its responsibilities by written
agreement with the person or persons to whom such responsibilities are so
delegated. The Company is hereby designated as the agent for service of legal
process.
6. Claims Procedure. The Employee or his beneficiaries hereunder shall
make a claim for benefits and have such claim reviewed under the following
procedure:
(a) The claimant shall make a claim for benefits by filing a
written request with the Administrator upon a form to be furnished by
him for such purpose. Any claimant shall submit to the Administrator a
death certificate or such other documents as may be required by the
Company or its insurers to verify the claim prior to payment. Any
failure to comply with this requirement within a reasonable time may,
within the discretion of the Board of Directors of the Company,
terminate such claimant's right to benefits hereunder.
(b) If a claim is wholly or partially denied, the
Administrator shall furnish the claimant with written notice of the
denial within ninety (90) days of the date the original claim was
filed. This notice of denial shall provide (1) the reason for the
denial, (2) specific reference to the pertinent provisions hereof on
which the denial is based, (3) a description of any additional
information needed to perfect the claim and an explanation of why such
information is necessary, and (4) an explanation of the claim procedure
hereunder.
(c) The claimant shall have sixty (60) days from receipt of
the denial notice in which to make written application for review by
the Administrator. The claimant may request that the review be in the
nature of a hearing. The claimant shall have the right (1) to
representation, (2) to review pertinent documents, and (3) to submit
comments in writing.
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(d) The Administrator shall issue a decision on such review
within sixty (60) days (one hundred twenty (120) days, if a hearing is
requested and held) after receipt of an application for review as
provided in paragraph (c).
7. General Provisions.
(a) The Board of Directors and officers of the Company, ROAQ
and Xxxxxxx do not in any way guarantee to Employee or his
beneficiaries the payment to Employee or his beneficiaries of any
benefit or amount which may become due in accordance with the terms
hereof.
(b) This agreement shall not be considered a guarantee of
employment for any period of time whatsoever, and does not insure the
Employee's retention as an employee of the Company or of his continued
participation herein.
(c) All section headings herein are intended merely for
convenience and shall in no way be deemed to modify or supplement the
actual terms and provisions set forth.
(d) The benefits provided hereunder shall be in addition to
the Employee's salary as determined by the Board of Directors of the
Company, and shall not affect the right of the Employee to participate
in any current or future retirement or other employee benefit plan
sponsored by the Company or in any supplemental compensation
arrangement which constitutes a part of the Company's regular
compensation structure.
(e) Neither the Employee nor any beneficiary thereof shall
have any right to commute, sell, assign, transfer or otherwise convey
the right to receive any payments hereunder, which payments and the
right thereto are expressly declared to be non- assignable and
non-transferable; and in the event of any attempted assignment or
transfer the Company shall have no further liability hereunder.
(f) The terms, provisions and conditions hereof shall be
binding upon and inure to the benefit of the Company and its assigns,
successors and the Employee and his or her beneficiaries,
administrators and executors.
(g) If any provision hereof is held invalid or unenforceable,
the other provisions will not be affected, and this Agreement will be
construed and enforced as if the invalid or unenforceable provision had
not been included.
(h) This Agreement shall be construed, administered and
enforced according to the laws of the United States of America and the
State of Vermont.
(i) Nothing in this section is intended or is to be construed
as requiring the Company to accelerate the payment dates or increase
the installment payment amounts of any benefits payable under this
Agreement.
8. ROAQ as a Party. ROAQ hereby agrees to joint and several liability
with Company for all of Company's agreements, covenants, duties and undertakings
under this
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Agreement and Employee agrees that ROAQ has all of Company's rights under this
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the day and year first written above.
ROCK OF AGES CORPORATION
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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XXXXXX XXXXXXX, Employee Xxxx X. Xxxxxxx, Chairman of the Board
and Chief Executive Officer
ROCK OF AGES QUARRIES, INC.
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Chairman of the Board
and Chief Executive Officer
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ROCK OF AGES CORPORATION
SALARY CONTINUATION AGREEMENT
Designation of Beneficiary
I hereby designate the following to receive any and all amounts which
may become payable after my death to any beneficiary other than my surviving
spouse under the Rock of Ages Corporation Salary Continuation Agreement,
superseding any prior designations.
Primary Beneficiary Relationship Share (%)
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Contingent Beneficiary Relationship Share (%)
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Date: , 19
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Employee Signature
