FORM OF SUPPLEMENTAL NON-QUALIFIED PENSION AGREEMENT
AGREEMENT dated as of May 25, 1994 by and between ASA Limited (the
"Company"), and Xxxxxx X.X. Xxxxx, an individual residing at 0 Xx. Xxxxxx'x
Xxxx, Xxxxxxx, Xxx Xxxx 00000 (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Executive has been Chairman of the Company's Board of
Directors (the "Board"); and
WHEREAS, the Company highly values the efforts, abilities and
accomplishments of the Executive and wishes to retain his services; and
WHEREAS, the Company wishes to provide the Executive with a certain
amount of supplemental non-qualified pension benefits for a ten-year period from
and after his retirement from active service with the Company as Chairman of its
Board or other salaried officer ("Service") or until the occurrence of one of
the events hereinafter specified;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. The Company shall pay the Executive a supplemental non-qualified
pension benefit as provided in paragraph 3 below.
2. a. The Company shall credit an amount specified below to a
compensation expense reserve (the "Supplemental Pension Account") established
for this purpose, in consideration of his service as Chairman of the' Board. The
Supplemental Pension Account shall be established in calendar year 1993 with a
credit of $25,000, and the Company shall credit to the Supplemental Pension
Account $25,000 each year f or four years thereafter (for a total of five years
credit) during the continuance of the Executive's Service as Chairman of the
Board (the "five-year period"). The Supplemental Pension Account is established
only for purposes of measuring the Supplemental Pension Benefits, as defined in
paragraph 3 below, and not to segregate assets or to identify assets that may be
used to pay the Supplemental Pension Benefits. The Supplemental Pension Account
will be credited with interest equivalents each calendar year during the
five-year period, equal to the greater of an annual interest rate of 3.5% and
the medium-term bond market rate determined by Swiss Life (Luxembourg) and
communicated to the Company for each year.
b. If the Executive's Service should terminate before the
five-year period has expired, the Company shall make the credit to the
Supplemental Pension Account on a pro rata basis for the calendar year in which
such termination of Service occurs, based on the number of days in such calendar
year that the Executive served as Chairman of the Board of the Company. If the
Executive's Service continues beyond the five-year period, the Company and the
Executive shall mutually agree upon whether the Company shall continue making
credits to the Supplemental Pension Account.
c. This Agreement is unfunded. A Supplemental Pension Benefit,
as defined in paragraph 3 below, represents at all times an unfunded and
unsecured contractual obligation of the Company. The Executive will be an
unsecured creditor of the Company. Amounts payable under the Agreement will be
satisfied solely out of the general assets of the Company subject to the claims
of the Company's creditors. Neither the Executive, his estate nor any other
person shall have any interest in any fund or in any specific asset of the
Company by reason of any amount credited to him hereunder, nor shall the
Executive, his estate or any other person have any right to receive any
distribution under the Agreement except as, and to the extent, expressly
provided for in the Agreement. The Company will not segregate any funds or
assets for Supplemental Pension Benefits or issue any notes or security for the
payment of any Supplemental Pension Benefits. Any reserve or other asset that
the Company may establish or acquire to assure itself of the funds to provide
benefits under the Agreement shall not serve in any way as security to the
Executive, his estate or other person for the performance of the Company under
the Agreement.
3. a. From and after the termination of the Executive's Service,
by retirement of the Executive from the active service as a salaried officer of
the Company or otherwise, the Company shall thereafter pay the Executive an
amount (the "Supplemental Pension Benefit") equal to an amount that is measured
by reference to the Supplemental Pension Account to be equal to the amount in
the Supplemental Pension Account, payable in ten (10) consecutive equal annual
payments by the Company to the Executive. Nothing in the preceding sentence
shall preclude the Executive from receiving the Supplemental Pension Benefit
even though he remains a member of the Board.
b. The Company further agrees that, in the event of the
Executive's death before a total of 10 annual payments have been made by the
Company, the remaining value of the Supplemental Pension Benefit shall be
determined as of the date of death of the Executive and paid as promptly as
possible in one lump sum to the estate of the Executive.
4. Nothing contained in this Agreement and no action taken pursuant
to the provisions of this Agreement shall create or be construed to create a
trust of any kind, or a fiduciary relationship between the Company and the
Executive, his estate or any other person. Any funds which may be invested under
the provisions of this Agreement shall continue for all purposes to be a part of
the general funds of the Company and no person other than the Company shall by
virtue of the provisions of this Agreement have any interest in such funds.
5. The Executive has been advised to consult his tax advisor
concerning the income, estate and other tax effects of the Supplemental Pension
Benefit payments provided herein, and the Company makes no representations or
warranties regarding such effects. The Executive has also been advised to
consult his attorney regarding this Agreement.
6. The right of the Executive or any other person to the payment of
Supplemental Pension Benefits under this Agreement shall not be assigned,
transferred, pledged or encumbered except, by will or by the laws of descent and
distribution. A Supplemental Pension Benefit shall not be subject to attachment,
execution by levy, garnishment, or other legal or equitable process for the
Executive or his estate's debts or other obligations. The Executive shall have
no control over his Supplemental Pension Benefit.
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7. Nothing contained herein shall be deemed to create any
obligation on the part of the Board to nominate the Executive for reelection by
the Company's stockholders, nor confer upon the Executive the right to remain
employed by the Company for any period of time, or at any particular rate of
compensation.
8. The Board shall have full power and authority to interpret,
construe and administer this Agreement and the Board's interpretations and
construction thereof, and actions thereunder, including any valuation of the
Supplemental Pension Account, or the amount or recipient of the payment to be
made therefore, shall be binding and conclusive on all persons for all purposes.
No member of the Board shall be liable to any person for any action taken or
omitted in connection with the interpretation and administration of this
Agreement.
9. This Agreement shall be binding upon and inure to the benefit of
the Company, its successors and assigns and the Executive and his heirs,
executors, administrators and legal representatives.
10. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officers and the Executive has hereunto set his
hand as of the date first above written
Executive ASA Limited
/s/ Xxxxxx X.X. Xxxxx By_______________________
-------------------------------- Title Treasurer
Xxxxxx X.X. Xxxxx -----------------------
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