EXHIBIT 10.1
AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
This agreement (the "Agreement") is made and effective as of May 4, 2004
between CSK AUTO, INC., an Arizona corporation (the "Company") and XXXXXXX
XXXXXXX, an individual residing at 0000 X. Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000
(the "Executive").
WHEREAS, the parties have entered into an Employment Agreement, amended
and restated as of June 12, 1998, whereby the Company has secured the exclusive
services of the Executive (the "Employment Agreement"); and
WHEREAS, in addition to the benefits payable pursuant to the Employment
Agreement, the parties wish to have the Company provide supplemental executive
retirement plan benefits ("SERP benefits") to the Executive on an unfunded basis
pursuant to the provisions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Employment Agreement shall be used as so defined.
2. Supplemental Executive Retirement Benefits.
(a) Time of Payment. Subject to satisfaction of the vesting
requirements set forth in Section 2(c) hereof and except as otherwise provided
in this Section 2, the Executive shall be entitled to receive SERP benefits for
a ten year period, the first such payment to be made thirty (30) days after the
effective date of the termination of the Executive's employment (but not earlier
than February 1, 2006 in the event Executive's employment is terminated for
Cause), and additional payments to be made on each succeeding anniversary of
such first payment through and including the ninth such anniversary (each such
date being hereinafter called a "Benefit Payment Date").
(b) Amount of Benefit. The gross amount payable to the Executive on
each Benefit Payment Date shall be $600,000 less applicable income and payroll
taxes (the "Maximum SERP Benefit"), or, if less than 100% vesting is attained,
such lesser amount as shall correspond to the degree of vesting attained.
(c) Vesting. The Executive shall vest in 33 1/3% of the Maximum SERP
Benefit on February 1, 2002, provided he is a full time executive of the Company
on such date, and shall vest in an additional 16 2/3% of the Maximum SERP
Benefit on each of the next four anniversaries of such date provided the
Executive is a full time executive of the Company on any such date. Thus, for
example, if the Executive is employed by the Company as of February 1, 2004, he
will have vested by such date in 66 2/3% of the Maximum SERP Benefit (66 2/3% x
$600,000 = $400,000 per year for ten years).
(d) Termination of Employment. In the event the Executive's
employment with the Company shall terminate prior to February 1, 2006, vesting
and payment of SERP benefits hereunder shall be determined in accordance with
the following provisions:
(i) Death or Disability. In the event the Executive's
employment with the Company is terminated prior to February 1, 2006 because of
his death or because of his permanent disability (as determined under the
Company's long-term disability program), then the Executive shall be vested in
his SERP benefits through the date of such termination, vesting for the year of
termination being prorated, on a monthly basis, through the end of the last
complete calendar month preceding such termination. Thus, for example, if such
termination shall occur on July 31, 2004, the Executive shall be deemed to have
satisfied 75% of the vesting requirement and shall be vested in 75% of the
Maximum SERP Benefit. In the event of such a termination because of death or
permanent disability, the Executive or his Beneficiary shall receive his vested
SERP benefit over a ten year period commencing thirty (30) days after the
effective date of the termination of the Executive's employment (but not earlier
than February 1, 2006 in the event Executive's employment is terminated for
Cause), or, in the sole and absolute discretion of the Board of Directors of the
Company (the "Board"), in lieu of such benefit, a lump sum payment, as soon as
practicable following such termination, of an actuarially equivalent amount,
discounted to present value at an eight percent (8 %) annual interest rate.
(ii) Termination Without Cause or With Good Reason. In the
event that the Executive's employment is terminated prior to February 1, 2006
either by the Company without Cause or by the Executive with Good Reason, then,
Executive shall thereupon be deemed to be fully vested in the Maximum SERP
Benefit, such benefit to be paid in accordance with Section 2(a). For all
purposes of this Section 2, the term " Cause" shall have the meaning ascribed to
it in the Employment Agreement but shall not include the Executive's death or
permanent disability, which are provided for in Section 2(d)(i) above and the
term "Good Reason" shall have the meaning ascribed to it in the Employment
Agreement.
(iii) Termination For Cause or Without Good Reason. In the
event that the Executive's employment is terminated prior to February 1, 2006
either by the Company for Cause or by the Executive without Good Reason, then
the Executive shall be vested in his SERP benefits through the date of such
termination, vesting for the year of termination being prorated, on a monthly
basis, through the end of the last complete calendar month preceding such
termination. Payment of such vested SERP benefits shall be made in accordance
with Section 2(a).
3. Acceleration of Payment. Notwithstanding the foregoing Section 2, the
Board, in its sole discretion, may accelerate the payment of all or part of the
Executive's SERP benefits if so requested by the Executive or, after the
Executive's death, by his Beneficiary; provided, however, that any such
accelerated payment may be permitted only in case of an unforeseeable emergency
(within the meaning of Section 457 of the Internal Revenue Code and the
regulations promulgated thereunder) that is caused by an event beyond the
control of the Executive or his Beneficiary and that would result in severe
financial hardship to such person if accelerated payment were not permitted. Any
such accelerated payment shall be limited to the amount necessary to meet or
satisfy the emergency.
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4. Designation of Beneficiary. Executive shall file with the Company a
written designation of one or more persons as the Beneficiary who shall be
entitled to receive the amounts, if any, payable hereunder after Executive's
death. Executive may, from time to time, revoke or change his Beneficiary
designation without the consent of any prior Beneficiary by filing a new
designation with the Company. The last such designation received by the Company
shall be controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Company prior to
Executive's death, and in no event shall it be effective as of a date prior to
such receipt. If no such Beneficiary designation is in effect at the time of
Executive's death, or if no designated Beneficiary survives Executive,
Executive's spouse shall be deemed to have been designated his Beneficiary or,
if his spouse does not survive Executive, Executive's estate shall be deemed to
have been designated his Beneficiary and the executor or administrator thereof
shall receive the amount, if any, payable hereunder after Executive's death. If
the Company is in doubt as to the right of any person to receive all or part of
such amount, the Company may retain such amount until the rights thereto are
determined, or the Company may pay such amount into any court of appropriate
jurisdiction and such payment shall be a complete discharge of the liability of
the Company therefor.
5. Administration of the Agreement and Claims.
a) Administration. This Agreement shall be administered by the
Compensation Committee of the Board if such committee exists, otherwise by the
Board ("the Committee"), which shall have full power, discretion and authority
to interpret, construe and administer this Agreement and any part thereof.
b) Claims for Benefits. Any claim for SERP benefits by Executive or
anyone claiming through Executive under this Agreement shall be delivered in
writing by the claimant to the Committee. The claim shall identify the benefits
being requested and shall include a statement of the reasons why the benefits
should be granted. The Committee shall grant or deny the claim. If the claim is
denied in whole or in part, the Committee shall give written notice to the
claimant setting forth: (a) the reasons for the denial, (b) specific reference
to pertinent provisions of the Agreement on which the denial is based, (c) a
description of any additional material or information necessary to request a
review of the claim and an explanation of why such material or information is
necessary, and (d) an explanation of the Agreement's claim review procedure. The
notice shall be furnished to the claimant within a period of time not exceeding
90 days after receipt of the claim, except that such period of time may be
extended, if special circumstances should require, for an additional 90 days
commencing at the end of the initial 90-day period. Written notice of any such
extension shall be given to the claimant before the expiration of the initial
90-day period and shall indicate the special circumstances requiring the
extension and the date by which the final decision is expected to be rendered.
(c) Appeals Procedure. A claimant who has been denied a claim for
benefits, in whole or in part, may, within a period of 60 days following his
receipt of the denial, request a review of such denial by filing a written
notice of appeal with the Committee. In connection with an appeal, the claimant
(or his authorized representative) may review pertinent documents and may submit
evidence and arguments in writing to the Committee. The Committee may decide the
questions presented by the appeal, either with or without holding a hearing, and
shall issue to the claimant a written notice setting forth: (a) the specific
reasons for the decision and
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(b) specific reference to the pertinent provisions of the Agreement on which the
decision is based. The notice shall be issued within a period of time not
exceeding 60 days after receipt of the request for review; except that such
period of time may be extended, if special circumstances (including, but not
limited to, the need to hold a hearing) should require, for an additional 60
days commencing at the end of the initial 60-day period. Written notice of any
such extension shall be provided to the claimant prior to the expiration of the
initial 60-day period.
6. Executive is Unsecured Creditor. Executive shall be a general unsecured
creditor of the Company with respect to his right to receive payments of SERP
benefits hereunder. This Agreement represents a mere promise by the Company to
make payments of deferred compensation (i.e., SERP benefits) in the future. All
payments of deferred compensation to be made hereunder shall be paid from the
general funds of the Company. It is the intention of the Company and Executive
that this Agreement and the Company's obligation to make payments of deferred
compensation hereunder be unfunded both for tax purposes and for purposes of
Title I of ERISA.
7. No Assignment of Rights. This Agreement shall be binding upon and inure
to the benefit of the Company and its successors and assigns, and Executive, his
Beneficiary and his estate. The rights of Executive, his Beneficiary and his
estate to payments of SERP benefits hereunder are expressly declared not to be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment, or garnishment by creditors of Executive, his
Beneficiary or his estate. Any attempted disposition of such rights shall be
null and void.
8. Facility of Payment. If the Committee shall find that any person to
whom any payment is payable under the Agreement is unable to care for his
affairs because of illness or accident, or is a minor, then any payment due
(unless a prior claim therefor shall have been made by a duly appointed
guardian, committee or other legal representative) may, if the Committee so
elects, be paid to his spouse, a child, a parent, or a brother or sister, or any
other person deemed by the Committee to have incurred expenses for such person
otherwise entitled to payment, in such manner and proportions as the Committee
may determine. Any such payment shall be a complete discharge of the liabilities
of the Company under the Agreement as to the amount of the payment.
9. Withholding of Taxes. The Company shall withhold from any and all
amounts payable hereunder appropriate federal, state and local income and
payroll taxes.
10. Extension of Medical Benefits. Notwithstanding anything contained in
this Agreement or the Employment Agreement to the contrary, commencing at such
time that Executive's employment is terminated for any reason other than for
Cause, and for a period of ten (10) years thereafter, Executive shall be
entitled to participate in all medical benefit plans and programs made available
by the Company to its executive officers, provided that Executive's right to
participate in such plans and programs shall not affect the Company's right to
amend or terminate the general applicability of such plans and programs, and
further provided that the Company shall not be required to provide any such
medical benefits that may at any time not be available to non-employees and in
such event the Company shall provide, at its cost, substantially comparable
medical benefits to Executive and his spouse in the form of COBRA
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benefits, supplemental policies to any applicable Medicare policy and/or
reimbursement of out-of-pocket co-insurance and deductible payments made by
Executive. Additionally, Executive shall not be entitled to participate in the
Company's medical benefit plans or to otherwise receive medical benefits as
provided herein during such time that Executive is offered the right to
participate in medical benefit plans of any future employer. Executive shall be
responsible for the payment of the taxes, if any, owed on imputed income
attributable to his receipt of the medical benefits to be provided herein.
11. Notices. Unless either party notifies the other to the contrary, any
notice required hereunder shall be duly given if delivered in person or by
certified or registered first class mail (a) if to the Company, to the
President, CSK Auto Corporation, and (b) if to Executive, to the address shown
at the beginning of this Agreement.
12. Entire Agreement. The terms and provisions of this Agreement
constitute the entire agreement between the parties and supersede any previous
oral or written communications, representations or agreements with respect to
the subject matter hereof.
13. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision had been omitted.
14. Successors. The Company's obligation hereunder shall be binding legal
obligations of any successor to all or substantially all of the Company's
business by purchase, merger, consolidation or otherwise. The Executive may not
assign this Agreement during his life, and upon his death, this Agreement shall
be binding upon and inure to the benefit of his heirs, legatees and the legal
representative of each.
15. Governing Law; Legal Proceedings. This Agreement shall be governed by
and construed and interpreted pursuant to the laws of the State of Arizona from
time to time in effect.
16. Amendment. This Agreement may be amended only by a written document
signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
CSK AUTO, INC. Executive
By: __________________________ XXXXXXX XXXXXXX
Its: __________________________ ___________________________
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