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Exhibit (ak)
FIRST AMENDMENT TO THE XXXXXX & SESSIONS CO.
AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT AGREEMENT
This First Amendment to the Amended and Restated Supplemental
Retirement Agreement (this "Amendment"), effective as of January 1, 2000 is made
by THE XXXXXX & SESSIONS CO., an Ohio corporation (the "Company"), in order to
amend the Amended and Restated Supplemental Retirement Agreement, dated as of
March 20, 1990 (the "Agreement").
NOW THEREFORE, the undersigned hereby amends the Agreement as
follows:
1. Section 1.1 of the Agreement is hereby amended and restated
to read in its entirety as follows:
"1.1 A "Change in Control" shall be deemed to have occurred if any of
the following events shall occur:
(a) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 15% or
more of either: (A) the then-outstanding shares of
common stock of the Company (the "Company Common
Stock") or (B) the combined voting power of the
then-outstanding voting securities of the Company
entitled to vote generally in the election of
directors ("Voting Stock"); PROVIDED, HOWEVER, that
for purposes of this subsection (a), the following
acquisitions shall not constitute a Change in
Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii)
any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any Subsidiary of the Company, or (iv)
any acquisition by any Person pursuant to a
transaction which complies with clauses (i), (ii)
and (iii) of subsection (c) of this Section 1.2; or
(b) Individuals who, as of the date hereof,
constitute the Board of Directors of the Company
(the "Incumbent Board") cease for any reason (other
than death or disability) to constitute at least a
majority of the Board of Directors of the Company;
PROVIDED, HOWEVER, that any individual becoming a
director subsequent to the date hereof whose
election, or nomination for election by the
Company's shareholders, was approved by a vote of
at least a majority of the directors then
comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement
of the Company in which such person is named as a
nominee for director, without objection to such
nomination) shall be considered as though such
individual were a member of the Incumbent Board,
but excluding for this purpose, any such individual
whose initial assumption of office occurs as a
result of an actual or threatened election contest
(within the meaning of Rule 14a-11 of the Exchange
Act) with respect to the election or
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removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf
of a Person other than the Board of Directors of
the Company; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all
or substantially all of the assets of the Company
(a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or
substantially all of the individuals and entities
who were the beneficial owners, respectively, of
the Company Common Stock and Voting Stock
immediately prior to such Business Combination
beneficially own, directly or indirectly, more than
50% of, respectively, the then-outstanding shares
of common stock and the combined voting power of
the then-outstanding voting securities entitled to
vote generally in the election of directors, as the
case may be, of the entity resulting from such
Business Combination (including, without
limitation, an entity which as a result of such
transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions relative to each
other as their ownership, immediately prior to such
Business Combination, of the Company Common Stock
and Voting Stock of the Company, as the case may
be, (ii) no Person (excluding any entity resulting
from such Business Combination or any employee
benefit plan (or related trust) sponsored or
maintained by the Company or such entity resulting
from such Business Combination) beneficially owns,
directly or indirectly, 15% or more of,
respectively, the then-outstanding shares of common
stock of the entity resulting from such Business
Combination, or the combined voting power of the
then-outstanding voting securities of such
corporation except to the extent that such
ownership existed prior to the Business Combination
and (iii) at least a majority of the members of the
board of directors of the corporation resulting
from such Business Combination were members of the
Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board of
Directors of the Company, providing for such
Business Combination; or
(d) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company."
2. Section 1.5 of the Agreement is hereby amended and restated
to read in its entirety as follows:
"1.5 Termination "For Cause" shall mean prior to any termination of
employment by the Company, Executive shall have committed:
(a) an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course
of his employment with the Company;
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(b) intentional wrongful damage to property of the
Company; or
(c) intentional wrongful disclosure of secret
processes or confidential information of the Company;
and any such act shall have been materially harmful to the Company. For purposes
of this Agreement, no act, or failure to act, on the part of Executive shall be
deemed "intentional" if it was due primarily to an error in judgment or
negligence, but shall be deemed "intentional" only if done, or omitted to be
done, by Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for "Cause"
hereunder unless and until there shall have been delivered to Executive a copy
of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the Board of Directors of the Company then in office at a
meeting of the Board of Directors of the Company called and held for such
purpose (after reasonable notice to Executive and an opportunity for Executive,
together with his counsel, to be heard before the Board of Directors of the
Company), finding that, in the good faith opinion of the Board of Directors of
the Company, Executive had committed an act set forth above in this Section 1.5
and specifying the particulars thereof in detail. Nothing herein shall limit the
right of Executive or his beneficiaries to contest the validity or propriety of
any such determination."
3. Section 7.9 of the Agreement is hereby deleted in its
entirety and shall be of no further force or effect. Section 7.10 of the
Agreement shall be renumbered to Section 7.9 to reflect this deletion of Section
7.9.
4. This Amendment is effective when it is executed by the
Company.
5. Except as expressly set forth in this Amendment, the
Agreement remains unchanged and continues in full force and effect.
6. The undersigned Executive hereby consents to the adoption
of this Amendment.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first above written.
THE XXXXXX & SESSIONS CO.
By:_________________________________
Senior Executive Officer
___________________________________
Executive
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