Exhibit 10P
AMENDMENT TO THE
XXXXX INDUSTRIES, INC.
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
(XXXXX X. X'XXXX)
Amendment to the Xxxxx Industries, Inc. Executive Supplemental Retirement
Plan (the "Plan"), effective as of August 21, 2005 (the "Amendment Effective
Date"), by and between Xxxxx Industries, Inc. (the "Employer") and Xxxxx X.
X'Xxxx (the "Executive").
WITNESSETH:
WHEREAS, the Employer established the Plan, effective January 1, 1997; and
WHEREAS, the Executive is a Participant (as defined in the Plan) in the
Plan;
WHEREAS, pursuant to Section 10.7 of the Plan, the Employer may amend or
modify any provision of the Plan as to any particular Participant (as defined in
the Plan) by agreement with such Participant, provided that such agreement is in
writing, is executed by both the Employer and the Participant, and is filed with
the Plan records;
WHEREAS, the Employer wants to amend certain provisions of the Plan as to
the Executive; and
WHEREAS, this Amendment shall apply only to the Executive and shall not
apply to any other Participants;
NOW, THEREFORE, the Plan is hereby amended as to the Executive as follows:
1. Section 2.4 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 2.4 The term 'Benefit Amount' shall mean $50,000.
Notwithstanding the foregoing, the Committee may, at any time and from
time to time, in its sole discretion, revise the Benefit Amount;
provided, however, that the Benefit Amount may not be reduced without
the Participant's written consent."
2. Section 2.6 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 2.6 The term 'Cause' shall mean 'cause' as defined in the
Employment Agreement, dated as of August 21, 2005, by and between the
Employer and the Participant (such employment agreement and any
subsequent amendments thereto are hereinafter referred to as the
`Employment Agreement')."
3. Section 2.7 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 2.7 The term 'Change in Control' shall mean `change in
control' as defined in the Employment Agreement."
4. Section 2.11 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 2.11 The term 'Early Retirement Date' shall mean the date of
the Participant's retirement during the period commencing on the first
day of the month coincident with or immediately following the date as
of which the Participant has attained age fifty-five (55)."
5. Section 2.14 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"Section 2.14 The term 'Good Reason' shall mean 'good reason' as
defined in the Employment Agreement."
6. Section 2.22 of the Plan shall be amended, in part, by deleting the
first sentence thereof and adding the following sentences in substitution
therefor:
"A 'Year of Service' shall mean a Plan Year commencing with the
calendar year beginning on the Effective Date, provided that the
Participant is employed by the Employer as a full-time employee on at
least one day during such Plan Year. Notwithstanding anything in the
Plan to the contrary, for purposes of determining the Participant's
Supplemental Vested Pension under Section 4.4, the Participant shall
be deemed to have (a) six Years of Service as of the Amendment
Effective Date, (b) eight Years of Service as of January 1, 2006 and
(c) ten Years of Service as of January 1, 2007."
7. Section 4.4 of the Plan shall be amended, in part, by deleting the first
paragraph thereof and adding the following in substitution therefor:
"Subject to the provisions of Article XI, if, prior to the
Participant's Normal or Early Retirement Dates, the Participant's
employment with the Employer is terminated (a) by the Employer other
than for Cause, (b) by the Participant for Good Reason, or (c) in the
event of a Change in Control, by the Participant at any time within
the 18 months following the Change in Control, the Participant shall
be entitled to receive a Supplemental Vested Pension equal to
one-twelfth (1/12th) of the Benefit Amount multiplied by the
percentage determined from the following table based upon his Years of
Service as of the date of termination of his employment:"
8. Section 4.5 of the Plan shall be deleted in its entirety and the
following shall be substituted therefor:
"The Participant shall not be entitled to receive any Supplemental
Pension under this Plan if (a) the Employer terminates the
Participant's employment for Cause or (b) the Participant terminates
his employment with the Employer prior to the date that he is eligible
to elect Early Retirement, unless the Participant terminates his
employment (i) for Good Reason or (ii) in the event of a Change in
Control, at any time within the 18 months following the Change in
Control."
9. New Sections 10.13 and 10.14 shall be added to the Plan as follows:
"Section 10.13 Notwithstanding anything in this Plan to the contrary,
the Employer shall have the right, subject to the Participant's
consent (which shall not be unreasonably withheld), to amend the Plan
without any additional consideration to the affected Participant to
the extent necessary to avoid penalties arising under Section 409A of
the Internal Revenue Code of 1986, as amended (the "Code"), even if
the amendments reduce, restrict or eliminate the benefits or rights of
the Participant or his Beneficiary under the Plan. Any amendment under
this Section 10.13 shall otherwise be consistent with the intent of
this Plan.
Section 10.14 The Employer agrees that it shall not knowingly or
negligently take an action or fail to take an action that causes the
Participant to incur any excise tax under Code Section 409A and that,
if it does, the Employer shall reimburse the Participant in the amount
of the excise tax and will fully gross up the Participant for the
federal, state and local income, employment, wage and excise taxes
(including any additional excise taxes under Code Section 409A)
associated with that reimbursement."
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amendment as of the date first written above.
Xxxxx Industries, Inc.
By: /s/ Xxxx X. Xxx
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Xxxx X. Xxx, President and
Chief Executive Officer
Executive
/s/ Xxxxx X. X'Xxxx
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Xxxxx X. X'Xxxx
