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Exhibit 10.x.
XXXXXX-XXXXXX COMPANY
EXECUTIVE SUPPLEMENTAL RETIREMENT AGREEMENT
In June, 1986,__________ ("Executive") and Xxxxxx- Xxxxxx Company
("Company") entered into an Executive Supplemental Retirement Agreement
("Agreement") to provide supplemental retirement income payments at normal
retirement or upon an earlier termination of employment.
The Agreement was subsequently amended and restated, effective
September 15, 1989, to reflect a change in the level of benefits provided and to
make certain other clarifying changes in the Agreement. The Agreement is hereby
amendment and restated, effective as of January 1, 1996.
1. Purpose. The purpose of this Agreement is to assist the Company in retaining
an Executive whose judgment, abilities and experience will contribute to its
continued progress. The Agreement provides deferred compensation for an
Executive considered by the Board to be a member of a select group of management
and highly compensated employees. The Board has determined that the benefits to
be paid to the Executive under this Agreement constitute reasonable compensation
for the services rendered and to be rendered by the Executive. The Agreement was
originally effective as of June 1, 1986. The Company now wishes to amend and
restate the Agreement effective as of January 1, 1996.
2. Definitions.
(a) Agreement. This Xxxxxx-Xxxxxx Company Executive
Supplemental Retirement Agreement, as in effect on June 1, 1986 and as
subsequently amended.
(b) Beneficiary. A person or persons or other entity
designated by the Executive to receive the payment of the Executive's benefits
under this Agreement. If there is no valid designation by the Executive, or if
the designated Beneficiary is not living or, if a trust, is not in existence at
the time of the Executive's death, the Executive's Beneficiary is the
Executive's estate.
(c) Board. The Board of Directors of the Company.
(d) Committee. The Compensation Committee of the Board.
(e) Company. Xxxxxx-Xxxxxx Company.
(f) Executive._________________
(g) Final Compensation. The Committee will compare
Executive's most recent base salary established by the Committee for each
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of the three consecutive 12-month periods (Fiscal Years) immediately preceding
the month in which Executive attains age 65, dies or terminates employment
before attaining age 65, also including any bonus paid or payable to Executive
on account of each of the Fiscal Years. Executive's final compensation shall be
the highest amount paid or payable to Executive during (or on account of) one of
those three Fiscal Years.
3. Administration.
(a) This Agreement is administered by the Committee. Subject
to the Agreement's provisions, the Committee may adopt rules and regulations
necessary to carry out the Agreement's purposes. Subject to subsection 3(b), the
Committee's interpretation and construction of any Agreement provision is final
and conclusive.
(b) If for any reason a benefit due under this Agreement is
not paid when due, the person entitled to such benefit may file a written claim
with the Committee. If the claim is denied or no response is received within 90
days (in which case the claim will be deemed to have been denied), the person
may appeal the denial to the Board within 60 days of the denial. In pursuing an
appeal, an individual may request that a responsible officer review the denial,
may review pertinent documents, and may submit issues and comments in writing. A
decision on appeal will be made within 60 days after the appeal is made, unless
special circumstances require the Board to extend the period for another 60
days. The decision of the Board shall be final and binding upon both the
Committee and the appellant.
4. Benefits.
(a) Normal Retirement.
(i) If the Executive retires at or after age 65, upon
his retirement he will be entitled to receive an annual retirement benefit that
will be distributed in monthly payments for a 15-year period. The first annual
retirement benefit will be equal to twenty-five percent of the Executive's Final
Compensation. The amount of each subsequent annual retirement benefit will be an
amount equal to the previous year's annual retirement benefit increased by 4%.
(ii) If the Executive dies after retirement at or after
age 65, but before he has received payments for a 15-year period, the balance of
the payments due to him shall be made to the Executive's Beneficiary. Payments
to the Executive's Beneficiary shall be distributed on a monthly basis unless
the Committee selects another distribution method (for example, annual payments
or a lump sum payment equivalent in value to the unpaid payments). If the
Beneficiary dies before he receives all of the payments due to him, the balance
of the payments due shall be paid to the Beneficiary's estate.
(page 80)
(b) Pre-Retirement Death.
(i) If the Executive continues to be employed by the
Company and dies before attaining age 65, his Beneficiary shall receive an
annual death benefit that will be distributed in monthly payments for a 10-year
period. The first and second annual pre-retirement death benefit payments will
be equal to one-hundred percent of the Executive's Final Compensation. The
amount of each subsequent annual pre-retirement death benefit payment will be an
amount equal to fifty percent of the Executive's Final Compensation.
(ii) If the Beneficiary dies before he receives all of
the payments due to him, the balance of the payments due shall be paid to the
Beneficiary's estate. The Committee, in its sole discretion, may authorize
another distribution method (for example, a lump sum payment equivalent in value
to the unpaid payments).
(c) Termination of Employment Before Age 65. If the Executive
terminates employment with the Company or is terminated by the Company before
attaining age 65 for any reason other than for "due cause," he shall be entitled
to receive in a lump sum within 30 days of such termination the present
discounted value of the annual benefit that would have been paid over a 15-year
period under this Agreement if he had retired at age 65 in accordance with
paragraph 4(a) above. In determining the present discounted value of benefits
under Section 4(a)(i), the interest rate employed shall be equal to 120% of the
Applicable Federal Rate determined under Internal Revenue Code Section 1274(d),
compounded semi-annually.
For purposes of this Agreement, "due cause" shall mean (i)
The commission of a crime of moral turpitude resulting in damage to the Company;
or (ii) The commission of a crime against the property or person of another
employee.
The Company's Board of Directors or Compensation Committee shall, in
its discretion, determine whether "due cause" exists.
(d) Timing of Distributions. Payments to the Executive begin
on the first day of the month after the Executive's retirement or termination of
employment. Payments to a Beneficiary begin on a date selected by the Committee
within six months of the Executive's date of death.
5. Designation of Beneficiary.
(a) The Executive may designate a Beneficiary to receive any
benefits due under this Agreement upon the Executive's death. The Beneficiary
designation must be made by executing a Beneficiary designation form provided by
the Committee.
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(b) The Executive may change an earlier Beneficiary
designation by a later execution of a Beneficiary designation form. A
Beneficiary designation is not binding on the Company until the Chief Financial
Officer receives the Beneficiary designation form.
6. Obligation of the Company. The amounts payable under this Agreement are to
be satisfied solely out of the general assets of the Company that remain subject
to the claims of its creditors. A benefit is at all times a mere contractual
obligation of the Company. The Executive and his Beneficiaries have no right,
title, or interest in benefits or any claim against them. The Company will not
segregate any funds for benefits nor issue any notes or security for the payment
of any benefits. No provision of this Agreement shall be construed as giving the
Executive any right to continue in the employ of the Company.
7. Restrictions on Transfer. Any benefits to which the Executive or his
Beneficiary is or may become entitled under this Agreement are not subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any attempt to do so is void. Benefits are not
subject to attachment or legal process for the debts, contracts, liabilities,
engagements, or torts of the Executive or his Beneficiary. This Agreement does
not give the Executive any interest, lien, or claim against any specific asset
of the Company. The Executive and his Beneficiaries have only the rights of a
general creditor of the Company.
8. Assignments. The Executive's interest in a benefit under this
Agreement is not assignable by the Executive or his Beneficiary. The
Company may assign its responsibilities and obligations under this
Agreement to anyone with or without notice to the Executive or
Beneficiaries.
9. Amendment or Termination.
(a) Subject to subsections 9(b) and (c) the Board may amend
or terminate this Agreement at any time.
(b) The Board may not amend or terminate this Agreement if
that action would reduce the benefit payable in the future or suspend or
interrupt the payment of benefits to the Executive or a Beneficiary who is
receiving payments pursuant to Section 4.
(c) This Agreement may not be amended or terminated if (i)
the Company's common stock is no longer publicly traded, or (ii) as a result of,
or in connection with, any cash tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any combination
of the foregoing transactions, the persons who were directors of the Company
before such transaction shall cease to constitute a majority of the Board of
Directors of the Company or any successor to the Company.
10. Successors and Assigns. This Agreement shall be binding on the Company, its
successors, and assigns. Should there be a consolidation or merger of the
Company with or into another corporation, or a purchase of all or substantially
all of the asset of the Company by another entity, the surviving or acquiring
corporation will succeed to the rights and obligations of the Company under this
Agreement.
11. Enforcement by Executive. If litigation shall be brought by the Company or
by Executive in good faith to enforce or interpret any provision of this
Agreement, or if Executive shall have to institute litigation brought in good
faith to enforce any of his rights under the Agreement, the Company shall
indemnify Executive for his reasonable attorney's fees and disbursements
incurred in any such litigation.
(page 82)
12. Computations. The computation of the amount of any payment or
benefit under this Agreement shall be made by the Company's then
independent accountants.
13. Construction. For construction, one gender includes the other, and the
singular and plural include each other where the meaning would be appropriate.
This Agreement is construed in accordance with the laws of the Commonwealth of
Virginia (other than its choice-of-law rules), except to the extent that the
laws of the United States of America have superseded those laws. The headings in
this Agreement have been inserted for convenience of reference only and are to
be ignored in any construction of the provisions. If a provision of this
Agreement is not valid, that invalidity does not affect other provisions.
XXXXXX-XXXXXX COMPANY
Date: ____________________ By_______________________________
Date: ____________________ _________________________________
EXECUTIVE
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