AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT (As Amended And Restated for Post-2004 Benefits, Effective January 1, 2008)
Form 8-K
Exhibit 10.9
AMENDED AND
RESTATED
(As
Amended And Restated for Post-2004 Benefits, Effective January 1,
2008)
This
Amended and Restated Supplemental Retirement Benefit Agreement (the
“Agreement”), is entered into as of this 24
day of
July , 2008 (the “Effective Date”), by and
between Nicor Inc., an Illinois corporation, (the “Company”), and Xxxx X.
Xxxxxxx (the “Executive”).
WITNESSETH
THAT
WHEREAS,
the Executive currently serves as Chairman of the Board of Directors, President
and Chief Executive Officer of the Company, and
WHEREAS,
the Executive and the Company are parties to a Supplemental Retirement Benefit
Agreement dated January 1, 2001 (the “Prior Agreement”); and
WHEREAS,
the Executive and the Company desire to amend and restate the Prior Agreement in
the form of this Agreement for purposes of that portion of Executive’s benefit
that was not earned and vested within the meaning of Treas. Reg. §1.409A-6(a) as
of December 31, 2004; and
WHEREAS,
notwithstanding any provisions of the Agreement to the contrary, the provisions
of the Prior Agreement in effect on October 3, 2004 apply with respect to those
benefits that were earned and vested under such Prior Agreement within the
meaning of Treas. Reg. §1.409A-6(a) as of December 31, 2004;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Executive agree as
follows:
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1.
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Supplementary
Retirement Plan. This Agreement is granted under and
subject to the terms and conditions of the Nicor Gas Supplementary
Retirement Plan (the “Plan”), unless otherwise provided
herein. The Executive shall be a Limited Participant in the
Plan, and benefits payable under the Agreement shall be paid under the
Plan. By execution of this Agreement, Executive consents to the
provisions of the Plan and this Agreement. Capitalized terms in
this Agreement shall have the meaning set forth in the Plan, unless
otherwise defined herein.
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2.
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Supplemental
Retirement Benefit. Subject to the following provisions
of this Agreement and notwithstanding any provisions of the Plan to the
contrary, the Executive shall be entitled to a Supplemental Retirement
Benefit in an amount equal to $50,000 per year, determined as though
payment would commence on the first day of the month next following the
later of the Executive’s sixtieth (60th)
birthday or Separation from Service and be payable for the Executive’s
life.
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This
Agreement applies only with respect to the 25% portion of the Supplemental
Retirement Benefit that was not earned and vested as of December 31,
2004. The terms of the Prior Agreement as in effect on October 3,
2004 apply with respect to the
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75%
portion of the Supplemental Retirement Benefit that was earned and vested on
December 31, 2004.
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3.
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Vesting
Percentage. The Executive is fully vested in the
Supplemental Retirement Benefit.
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4.
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Time and Form of
Payment. The Supplemental Retirement Benefit shall be
paid as an Actuarially Equivalent Lump Sum. The “Actuarially
Equivalent Lump Sum” shall be determined as of the Executive’s Separation
from Service, as the actuarial equivalent of the amount of the
Supplemental Retirement Benefit described in section (2) of this Agreement
determined using the lump sum actuarial factors set forth in the
Plan. In addition, interest on the Supplemental Retirement
Benefit shall accrue commencing on the Executive’s Separation from Service
and ending on the Executive’s payment date (as described below), at the
first segment interest rate in effect at the Executive’s Separation from
Service under Section 417(e)(3)(D) of the
Code.
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Payment
of the Supplemental Retirement Benefit shall be made on the first business day
of the seventh month after the Executive’s Separation from Service date (the
“payment date”). If due to administrative reasons the Supplemental
Retirement Benefit cannot be distributed on the date otherwise payable under
this paragraph 4, then such benefit and interest thereon shall be distributed as
soon as practicable thereafter, but no later than December 31st of the
calendar year in which such distribution is otherwise payable (or the 15th day of
the third calendar month following the date otherwise payable, if
later).
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5.
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Death. If
the Executive’s Separation from Service occurs as the result of death
while employed by the Company or Nicor Gas Company (“Nicor Gas”), no
benefits shall be payable under this
Agreement.
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6.
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Cause. If
the Executive’s Separation from Service occurs for “Cause”, no benefits
shall be payable under this Agreement. “Cause” means: (a)the
Executive’s willful commission of acts or omissions which have, have had,
or are likely to have a material adverse effect on the business,
operations, financial condition or reputation of the Company or Nicor Gas;
(b) the Executive’s conviction (including a plea of guilty or nolo contendere) of a
felony or any crime of fraud, theft, dishonesty or moral turpitude; or (c)
the Executive’s material violation of any statutory or common law duty of
loyalty to the Company or Nicor Gas. For purposes of this
Agreement, no act, or failure to act, on the part of the Executive shall
be considered “willful” unless it is done, or omitted to be done, by the
Executive in bad faith or without reasonable belief that the Executive’s
action or omission was in the best interests of the Company or Nicor
Gas. Any act, or failure to act, pursuant to direction provided
by the person to whom the Executive reports, or provided by a resolution
duly adopted by the Board, or pursuant to advice of counsel for the
Company or Nicor Gas, shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best
interests of the Company or Nicor
Gas.
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7.
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Heirs and
Successors. This Agreement shall be binding upon, and
inure to the benefit of, the heirs, executors and legal representatives of
the Executive and the Company and its successors and assigns, and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the
Company’s
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assets
and business.
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8.
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Benefit May Not Be
Assigned or Alienated. The benefit payable to any person
under this Agreement may not be voluntarily or involuntarily assigned or
alienated.
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9.
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Applicable
Laws. This Agreement shall be interpreted and
administered in accordance with the laws of the State of Illinois, without
regard to its choice of law
principles.
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10.
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Entire Agreement and
Amendment. The Plan, the Prior Agreement and this
Agreement constitute the entire agreement between the Executive and the
Company with respect to supplemental retirement benefits, and supersede
all other agreements, verbal and written, that may have been made by the
parties hereto. This Agreement may be amended or cancelled by
mutual agreement of the parties hereto in writing without the consent of
any other person and, so long as the Executive lives, no person, other
than the parties hereto, shall have any rights under or interest in this
Agreement or the subject matter
hereof.
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11.
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Section 409A
Compliance. To the extent applicable, this Agreement
shall be interpreted in accordance with Section 409A of the Internal
Revenue Code of 1986 (the “Code”) and Department of Treasury regulations
and other interpretive guidance issued
thereunder. Notwithstanding section (10) of this Agreement, if
the Company determines that any compensation or benefits payable under
this Agreement do not comply with Code Section 409A and related Department
of Treasury guidance, the Company and Executive agree to amend this
Agreement or take such other actions as the Company deems necessary or
appropriate to comply with the requirements of Code Section 409A while
preserving the economic agreement of the
parties.
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12.
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Severability. If
any one or more sections or other portions of this Agreement are declared
by any court or governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate any section or
other portion not so declared to be unlawful or invalid. Any section or
other portion so declared to be unlawful or invalid shall be construed so
as to effectuate the terms of such section or other portion to the fullest
extent possible while remaining lawful and
valid.
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13.
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Notices. All
notices and other communications under this Agreement shall be in writing
and delivered by hand, by a nationally-recognized commercial delivery
service, or by first-class registered or certified mail, return receipt
requested, postage prepaid, addressed as
follows:
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If to the
Executive:
Xxxx X.
Xxxxxxx
00
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
If to the
Company:
0000
Xxxxx Xxxx
Xxxxxxxxxx,
XX 00000-0000
Attn:
Senior Vice President –
Human
Resources
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14.
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Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be deemed as original, but all of which together shall constitute one and
the same instrument.
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15.
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Captions. The
captions of this Agreement are not a part of the provisions hereof and
shall have no force or effect.
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16.
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Tax
Withholding. The Company may withhold from any amounts
payable under this Agreement any federal, state, or local taxes that are
required to be withheld pursuant to any applicable law or
regulation.
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17.
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No
Waiver. A waiver of any provision of this Agreement
shall not be deemed a waiver of any other provision, and any waiver of any
default as to any such provision shall not be deemed a waiver of any later
default as to that or any other
provision.
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IN
WITNESS WHEREOF, the Executive and the Company have executed this Agreement as
of the date first above written.
EXECUTIVE
NICOR INC.
/s/ XXXX X.
XXXXXXX
By: /s/ XXXXXXX X.
XXXXXXXXX
Xxxx X.
Xxxxxxx Its: Senior Vice President Human
Resources
and Corportate
Communications
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