EXHIBIT 10.9
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT AGREEMENT made and entered into on the
9th day of February, 2005 between Xxxxxxx.xxx, Inc., a Delaware Corporation (the
"Company") and Xxxxxx Xxxxxxx (the "Executive"):
WITNESSETH:
WHEREAS, the Executive has an employment agreement with the Company
originally dated as of December 18, 2001 which was last amended and restated as
of February 9, 2005 (the "Employment Agreement"); and
WHEREAS, under Section 2.3 of the current Employment Agreement and
under Section 2.3 of the original Employment Agreement, a Supplemental
Retirement Plan ("SRP") was to be established for the Executive and the Company
was to credit amounts thereunder; and
WHEREAS, a draft SRP document was prepared on December 10, 2001, but
was never finalized and executed; and
WHEREAS, the Company desires to provide the Executive with the
intended benefits under the SRP:
NOW, THEREFORE, the parties agree as follows:
1. The Company shall establish a bookkeeping account in the name
of the Executive (the "Account") and shall credit the following amounts
effective as of the dates indicated:
Effective Date Amount Credited
-------------- ---------------
December 18, 2002 $ 50,000
December 18, 2003 $ 75,000
December 18, 2004 $ 100,000
December 18, 2005 $ 125,000
December 18, 2006 $ 150,000
The Company may, but need not, credit additional amounts as it may determine.
2. The Account shall be credited with such gains and charged with
such loses as if it had been invested in hypothetical investments selected by
the Company. If life insurance policies are selected as the hypothetical
investments, their cash surrender values shall be the value of the investment
for purposes of determining the value of the Account.
3. Upon the Executive's termination of employment with the
Company the Executive (or the Executive's designated beneficiary, if the
Executive has died) will be paid the value of the Account (either in cash or
property, or both, at the Company's option) in a single lump sum, and, subject
to the Employment Agreement, all future credits under this Agreement shall
cease.
4. The Executive's right to receive payment hereunder shall not
be assigned or alienated. The right to receive payment hereunder shall be no
greater than that of an unsecured creditor of the Company. Any assets which the
Company may acquire in anticipation of its obligations hereunder shall remain
the assets of the Company.
5. Claim. A Participant, beneficiary or other person who believes
that he or she is being denied a benefit to which he or she is entitled
(hereinafter referred to as "Claimant"), or his or her duly authorized
representative, may file a written request for such benefit with a Second Level
Reviewer consisting of the Director of Human Resources (the "First Level
Reviewer") setting forth his or her claim. The request must be addressed to:
Director of Human Resources, Xxxxxxx.xxx, Inc., 000 Xxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxxxxxxxxx 00000.
(a) Claim Decision. Upon receipt of a claim, the First Level
Reviewer shall advise the Claimant that a reply will be forthcoming within a
reasonable period of time, but ordinarily not later than ninety days, and shall,
in fact, deliver such reply within such period. However, the First Level
Reviewer may extend the reply period for an additional ninety days for
reasonable cause. If the reply period will be extended, the First Level Reviewer
shall advise the Claimant in writing during the initial 90-day period indicating
the special circumstances requiring an extension and the date by which the First
Level Reviewer expects to render the benefit determination.
If the claim is denied in whole or in part, the First Level
Reviewer will render a written opinion, using language calculated to be
understood by the Claimant, setting forth:
(1) the specific reason or reasons for the denial;
(2) the specific references to pertinent Plan
provisions on which the denial is based;
(3) a description of any additional material or
information necessary for the Claimant to perfect the claim and an
explanation as to why such material or such information is
necessary;
(4) appropriate information as to the steps to be
taken if the Claimant wishes to submit the claim for review,
including a statement of the Claimant's right to bring a civil
action under Section 502(a) of ERISA following an adverse benefit
determination on review; and
(5) the time limits for requesting a review of the
denial under Subsection b hereof and for the actual review of the
denial under Subsection c hereof.
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(b) Request for Review. Within sixty days after the receipt\
by the Claimant of the written opinion described above, the Claimant may request
in writing that the General Counsel (the "Second Level Reviewer") review the
First Level Reviewer's prior determination. Such request must be addressed to:
General Counsel, Xxxxxxx.xxx, Inc., 000 Xxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000 (the "Committee") . The Claimant or his or her duly authorized
representative may submit written comments, documents, records or other
information relating to the denied claim, which such information shall be
considered in the review under this subsection without regard to whether such
information was submitted or considered in the initial benefit determination.
The Claimant or his or her duly authorized representative
shall be provided, upon request and free of charge, reasonable access to, and
copies of, all non-privileged documents, records and other information which (i)
was relied upon by the First Level Reviewer in making its initial claims
decision, (ii) was submitted, considered or generated in the course of the First
Level Reviewer making its initial claims decision, without regard to whether
such information was actually relied upon by the First Level Reviewer in making
its decision or (iii) demonstrates compliance by the First Level Reviewer with
its administrative processes and safeguards designed to ensure and to verify
that benefit claims determinations are made in accordance with governing Plan
documents and that, where appropriate, the Plan provisions have been applied
consistently with respect to similarly situated claimants. If the Claimant does
not request a review of the First Level Reviewer's determination within such
sixty-day period, he or she shall be barred and estopped from challenging such
determination.
(c) Review of Decision. Within a reasonable period of time,
ordinarily not later than sixty days, after the Second Level Reviewer's receipt
of a request for review, it will review the First Level Reviewer's prior
determination. If special circumstances require that the sixty-day time period
be extended, the Second Level Reviewer will so notify the Claimant within the
initial 60-day period indicating the special circumstances requiring an
extension and the date by which the Second Level Reviewer expects to render its
decision on review, which shall be as soon as possible but not later than 120
days after receipt of the request for review. In the event that the Second Level
Reviewer extends the determination period on review due to a Claimant's failure
to submit information necessary to decide a claim, the period for making the
benefit determination on review shall not take into account the period beginning
on the date on which notification of extension is sent to the Claimant and
ending on the date on which the Claimant responds to the request for additional
information.
The Second Level Reviewer has discretionary authority to
determine a Claimant's eligibility for benefits and to interpret the terms of
the Plan. Benefits under the Plan will be paid only if the Second Level Reviewer
decides in its discretion that the Claimant is entitled to such benefits. The
decision of the Second Level Reviewer shall be final and non-reviewable, unless
found to be arbitrary and capricious by a court of competent review. Such
decision will be binding upon the Company and the Claimant.
If the Second Level Reviewer makes an adverse benefit
determination on review, the Second Level Reviewer will render a written
opinion, using language calculated to be understood by the Claimant, setting
forth:
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(1) the specific reason or reasons for the denial;
(2) the specific references to pertinent Plan provisions on
which the denial is based;
(3) a statement that the Claimant is entitled to receive,
upon request and free of charge, reasonable access to, and copies
of, all non-privileged documents, records and other information
which (i) was relied upon by the Second Level Reviewer in making its
decision, (ii) was submitted, considered or generated in the course
of the Second Level Reviewer making its decision, without regard to
whether such information was actually relied upon by the Second
Level Reviewer in making its decision or (iii) demonstrates
compliance by the Second Level Reviewer with its administrative
processes and safeguards designed to ensure and to verify that
benefit claims determinations are made in accordance with governing
Plan documents, and that, where appropriate, the Plan provisions
have been applied consistently with respect to similarly situated
claimants; and
(4) a statement of the Claimant's right to bring a civil
action under Section 502(a) of ERISA following the adverse benefit
determination on such review.
6. This Agreement may be amended by written consent of the
parties.
7. This Agreement shall be construed and administered in
accordance with the laws of the State of California, without regard to the
principles of conflicts of law which might otherwise apply.
IN WITNESS WHEREOF, the forgoing was executed on the 9th day of
February, 2005.
XXXXXXX.XXX, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
____________________________
Xxxxxxxxx X. Xxxxx, Chief
Financial Officer
/s/ Xxxxxx Xxxxxxx
_______________________________
Xxxxxx Xxxxxxx
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