EXHIBIT 10 hhh
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DEATH BENEFIT AGREEMENT
THIS DEATH BENEFIT AGREEMENT (the "Agreement") is hereby made between
Xxxxx Telecom Inc., a Delaware corporation ("Xxxxx"), and ______________________
(the "Employee")
W I T N E S S E T H:
WHEREAS, the Employee is the [TITLE] of Xxxxx; and
WHEREAS, Xxxxx is the owner of one or more life insurance policies on
the life of the Employee (the "Policy"); and
WHEREAS, the Employee wishes to provide for the benefit and protection
of his beneficiary or beneficiaries in the event of his death; and
WHEREAS, the Corporation, in recognition of the Employee's services,
wishes to assist the Employee in providing such benefits.
NOW, THEREFORE in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
parties agree as follows:
1. DEFINITION - For purposes of this Agreement, "Annual Compensation"
shall mean and include the annual base salary being paid to the Employee by
Xxxxx or by any subsidiary owned at least 50% by Xxxxx (an "Affiliate")
before any reductions for contributions made to any retirement, salary
deferral or welfare benefit plans. Annual Compensation shall not include
any other items of remuneration such as bonuses, employer contributions to
employee benefit plans, the value of stock options or other equity awards,
payments with respect to this Agreement or reimbursement of expenses.
2. OWNERSHIP OF POLICY - Xxxxx will continue to own the Policy and,
accordingly, is empowered to exercise all rights and incidents of ownership
thereof, except as otherwise provided herein.
3. BENEFICIARY DESIGNATIONS AND SETTLEMENT OPTIONS - Beneficiary
designations and settlement options for the Policy shall be selected on the
date hereof and, if necessary, shall be adjusted from time to time during
the term of this Agreement so that proceeds receivable under the Policy
upon the Employee's death shall be paid as follows:
A. A lump sum equal to (i) 500% of the Employee's Annual Compensation
as of the date of his death minus (ii) $50,000, shall be paid to the
beneficiary or beneficiaries designated on Schedule "A".
B. Any proceeds payable under the Policy upon the death of the Employee
in excess of the amount described in Paragraph A of this Section 3
shall be paid in a lump sum to Xxxxx.
C. The beneficiary designations and settlement options required to
effect payments under the Policy to comply with the foregoing
provisions shall not be changed without the prior written consent of
the Employee.
D. If the amount described in Paragraph A of this Section 3 exceeds the
total death benefit payable under the Policy as of the date of the
Employee's death, such excess shall nonetheless be payable by Xxxxx
either from its assets, or from the proceeds of one or more additional
insurance policies (other than Xxxxx'x group term life insurance plan
for its employees), which Xxxxx may elect to acquire. If Xxxxx elects
to acquire additional insurance on the Employee's life to fund any such
excess, the Employee will cooperate with Xxxxx in the acquisition of
such insurance; provided, however, that the cost of such insurance
shall be paid solely by Xxxxx.
4. PAYMENT OF PREMIUMS - All Policy premiums will be paid by Xxxxx. The
Employee acknowledges that taxable income will be imputed to the Employee
for income tax purposes each year as a result of Xxxxx'x payment of
premiums on the Policy pursuant to this Agreement.
5. RIGHT OF XXXXX TO MAKE POLICY LOANS -
X. Xxxxx shall have the right to obtain loans secured by the Policy.
Such loans may be obtained either from the insurer or from others.
Xxxxx shall have the right to assign the Policy as security for the
repayment of such loans. The amount of such loans together with the
interest thereon shall at no time exceed the cash surrender value of
the Policy as of the date to which the premiums on the Policy have been
paid.
B. If Xxxxx assigns or encumbers the Policy in any way as security for
a loan, Xxxxx shall pay all or any part of the principal of and
interest on such loan when due and shall not allow such loan to be in
default. In any event, any such loan shall be paid in full upon the
Employee's death.
C. If the Policy is assigned or encumbered in any way, other than by a
Policy loan on the date of the Employee's death, Xxxxx will promptly
take all steps which may be necessary to secure a release or discharge
of the assignment or encumbrance so that the portion of the death
proceeds payable under the Policy to the beneficiaries designated in
Schedule "A" will be paid promptly.
6. DEATH CLAIMS - If the Employee dies while this Agreement is in effect,
Xxxxx shall promptly take all steps which are required to cause the
proceeds under the Policy to be paid in accordance with this Agreement. The
proceeds shall be paid in
accordance with the settlement options selected pursuant to Paragraph 3
above, or, in the absence of any such designation, as the beneficiaries
designated in Schedule "A" shall direct or, in the absence of any direction
by such beneficiaries within twenty (20) days after they have been notified
of their right to make such direction, as Xxxxx may elect in its sole
discretion.
7. TERMINATION OF AGREEMENT - This Agreement shall terminate upon the
termination of the Employee's employment with Xxxxx and its Affiliates for
any reason. Upon the termination of this Agreement, Xxxxx shall cease to
have any obligation to the Employee with respect to the Policy or the
payment of death benefits hereunder.
8. KEEPING POLICY IN EFFECT - Xxxxx agrees that it will keep the Policy in
force until this Agreement is terminated.
9. AGREEMENT BINDING ON AFFILIATES - If the Employee is employed at any
time by an Affiliate but not by Xxxxx (a) this Agreement shall be deemed to
be assigned by Xxxxx to such Affiliate; (b) the Affiliate which then
employs the Employee shall be deemed to have been substituted for Xxxxx and
to have assumed all of the obligations of Xxxxx hereunder; and (c) Xxxxx
shall nevertheless remain liable for the performance of all of its
obligations hereunder.
10. MISCELLANEOUS -
A. This Agreement shall not be modified or amended except by a writing
signed by both parties hereto. This Agreement shall be binding upon the
heirs, administrators or executors and the successors and assigns of
each party to this Agreement.
B. This Agreement shall be construed under the laws of the State
of Ohio.
C. This Agreement shall supersede any prior understanding and/or
agreements between the parties pertaining to the subject matter of this
Agreement.
D. The parties agree to execute and deliver any additional instruments
which are reasonably required to give full force and effect to the
transactions contemplated by this Agreement.
E. Any notices sent hereunder shall be deemed sufficient if they are
sent to the parties by registered or certified mail return receipt
requested. Notice of change of address must be sent in the same manner.
Notice shall be deemed given on the date mailed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the ______ day of ________________, 2003.
__________________________________
EMPLOYEE
__________________________________
XXXXX TELECOM INC.
By:_______________________________
Title:____________________________
SCHEDULE A
BENEFICIARIES DESIGNATED TO RECEIVE AMOUNTS DESCRIBED IN
PARAGRAPH A OF SECTION 3 OF THIS AGREEMENT
Primary Beneficiary:
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Contingent Beneficiary:
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