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Exhibit 10(zz)
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AMENDMENT OF
SUPPLEMENTAL TARGET PENSION BENEFIT AGREEMENT
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THIS AMENDING AGREEMENT made as of the 1st day of
August, 1997 by and between XXXXX TELECOM INC., a Delaware
Corporation, (the "Company") having its principal executive offices at
Beachwood, Ohio, and Xxxxxx X. Xxxx, of Cleveland (the "Executive").
RECITALS
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A. The Executive has been and is employed by the Company in a
key executive capacity, and it is expected that he will continue to contribute
to the growth and success of the Company during his employment by it; and
B. The Company maintains a tax-qualified retirement plan for
employees designated as the Xxxxx Telecom Inc. Corporate Retirement Plan (the
"Pension Plan"), which is intended to meet the requirements of a "qualified
plan" under the Internal Revenue Code of 1986, as amended (the "Code"), and a
nonqualified retirement plan for certain employees designated as The Xxxxx Group
Inc. Restoration Plan (the "Restoration Plan"), which is intended to supplement
benefits payable under the Pension Plan by restoring benefits that cannot be
provided under the Pension Plan because of the limitations imposed under the
Internal Revenue Code and because of reductions in compensation pursuant to The
Xxxxx Group Inc. Deferred Compensation Plan; and
C. The Company and the Executive previously entered into a
Supplemental Target Pension Benefit Agreement (the "Pension Agreement") intended
to provide an aggregate level of non-qualified and qualified pension benefits to
the Executive which exceed the benefits provided under the Pension Plan and the
Restoration Plan;
NOW, THEREFORE, in consideration of the premises and of the
Executive's services and significant contributions to the Company, the parties
hereto agree as follows:
I.
Article I of the Pension Agreement is hereby amended by the
addition of the following new Section thereto:
"SECTION 1.1(16.1). "EXECUTIVE BENEFIT PLAN" shall mean the
Xxxxx Telecom Inc. Executive Benefit Plan."
II.
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Section 2.4 of the Pension Agreement is hereby amended in its
entirety to read as follows:
"SECTION 2.5. MAXIMUM BENEFIT. (a) In no event shall the
amount of the Executive's Supplemental Target Pension Benefit exceed an
annual amount of $250,000 reduced by four-twelfths of one percent
(4/12%) for each month (if any) by which the Executive's Supplemental
Target Pension Benefit commences before the Executive's attainment of
age 65.
(b) In the event the Executive receives or becomes entitled to
receive a benefit under the Executive Benefit Plan (the "EBP Benefit"),
the Executive's Supplemental Target Pension Benefit shall be offset and
reduced in accordance with this subsection to take into account the
value of the EBP Benefit received by the Executive. The offset
described in the preceding sentence shall be calculated as follows.
First, the EBP Benefit shall be increased by interest for the period
from the date of the payment of the EBP Benefit to the date of
commencement of benefit payments hereunder at the rate in effect under
the Pension Plan for determining Actuarial Equivalent values for lump
sum payment purposes at the time of the payment of the EBP Benefit. The
EBP Benefit, as so increased, is referred to below as the "Increased
EBP Benefit". Second, the Increased EBP Benefit shall be converted into
an annuity, payable in the same form and for the same duration as the
benefit payable to the Executive under the Pension Agreement before the
application of this subsection, that is the Actuarial Equivalent of the
Increased EBP Benefit amount, and such Actuarial Equivalent shall be
subtracted from the Executive's Supplemental Target Pension Benefit."
III.
Section 2.6 of the Pension Agreement is hereby amended by the
addition of the following new subsection at the end thereof:
"(c) Subsequent to the Executive's Benefit Commencement Date, the
Executive may elect to receive his remaining Supplemental Pension
Benefit in a single cash lump sum payment. If the Executive so elects,
the amount to be paid to him shall be equal to the actuarial
present value of all remaining Supplemental Pension Benefit
payments calculated as of the date of such payment reduced by ten
percent (10%). The remaining ten percent (10%) of the actuarial
present value of all remaining Supplemental Pension Benefit
payments shall be forfeited."
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IV.
Section 6.1 of the Pension Agreement is hereby amended in its
entirety to read as follows:
"SECTION 6.1. LIMITATION ON RIGHTS OF THE EXECUTIVE AND
BENEFICIARIES - NO LIEN. This Agreement is an unfunded, unsecured,
nonqualified plan and the entire cost of this Agreement shall be paid
from the general assets of the Company. The Company, in its sole
discretion, may establish a trust to hold funds or other property to be
used in payment of benefits under this Agreement; provided, however,
that any funds or other property contained therein shall remain liable
for the claims of the Company's general creditors. No liability for the
payment of benefits under this Agreement shall be imposed upon any
officer, director, employee, or stockholder of the Company. Nothing
contained herein shall be deemed to create a lien in favor of the
Executive or Beneficiary on any assets of the Company. The Company
shall have no obligation to purchase any assets that do not remain
subject to the claims of the creditors of the Company for use in
connection with this Agreement. Each Executive and Beneficiary shall
have the status of a general unsecured creditor of the Company and
shall have no right to, prior claim to, or security interest in, any
assets of the Company."
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Except as herein specifically amended the Pension Agreement is
ratified and confirmed.
This Amending Agreement and the Pension Agreement shall be
read, interpreted and construed as a single agreement.
IN WITNESS WHEREOF, Xxxxx Telecom Inc. has caused this
Amending Agreement to be signed by its proper officer and Executive has hereunto
set his hand this 1st day of August, 1997.
ATTEST XXXXX TELECOM INC.
By:
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Secretary Title:
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WITNESS:
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