Exhibit 10.aa.
XXXXXX-XXXXXX COMPANY
EXECUTIVE SUPPLEMENTAL RETIREMENT AGREEMENT
____________________ ("Executive") and Xxxxxx-Xxxxxx Company
("Company") have previously 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 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 amended 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 of the three consecutive 12-month periods (Fiscal Years)
(page 89)
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 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
(page 90)
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.
(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 an 8-year period. The
amount of each 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 under circumstances entitling Executive to a
payment under the Company's Severance Plan 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.
(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.
(page 91)
(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
(page 92)
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 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.
12. Computations. The computation of the amount of any payment or
benefit under this Agreement shall be made by the Company's then
independent public 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 Name
(page 93)
