AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT
Exhibit 10.8
AMENDED AND RESTATED SALARY CONTINUATION AGREEMENT
This Amended and Restated Salary Continuation Agreement (“Agreement”), which supersedes and
cancels any previously dated Salary Continuation Agreements, is made and entered into as of this
26th day of December, 2008, by and between X. Xxxxxxxxx’x Corporation, a Tennessee corporation with
its principal office in Nashville, Tennessee (the “Corporation”), and Xxxx X. Xxxxxx, a resident of
Franklin, Tennessee (“Employee”).
For and in consideration of the mutual covenants contained herein, the parties hereto agree as
follows:
1. Recitals. The Corporation values the efforts, abilities and accomplishments of
Employee in the performance of his duties as an employee of the Corporation, and the Corporation
recognizes the importance of Employee as a member of the management of the Corporation. In order to
induce the continued employment with the Corporation of Employee, Corporation is willing to provide
the benefits contained in this Agreement, and Employee accepts these benefits as a material part of
his employment with the Corporation.
2. Definitions.
a. “Base Salary” for purposes of calculating a benefit hereunder as of a specific date
shall be the greater of (i) the Employee’s actual annual base salary in effect as of that
date or (ii) the average of the Employee’s annual base salary for the three full fiscal
years immediately preceding the Separation from Service.
b. “Beneficiary” or “Beneficiaries” shall mean the person(s) designated as the
Employee’s beneficiary or beneficiaries in an election form filed by the Employee with the
Corporation, or in the absence of such designation, the Employee’s Beneficiary shall be
deemed to be the Employee’s estate.
c. “Change in Control” shall mean a “change in control” of the Corporation as defined
in Section 2(g) of the X. Xxxxxxxxx’x Corporation Amended and Restated 2004 Equity Incentive
Plan.
d. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
References to any section of the Internal Revenue Code shall include any successor provision
thereto.
e. “Conversion Interest Rate” shall mean seven percent (7%).
f. “Employee’s Early Retirement Date” shall mean the date of the Employee’s Separation
from Service before attaining his Normal Retirement Age, for reasons other than death.
g. “Employee’s Normal Retirement Date” shall mean the date of the Employee’s Separation
from Service on or after the Employee attaining his Normal Retirement Age.
h. “ERISA” shall mean the Employee Retirement Income Security Act of 1974.
i. “Normal Retirement Age” shall mean the date the Employee attains age 65.
j. “Qualified Change in Control” shall mean a “change in the ownership” or “effective
control” of the Corporation, or a “change in the ownership of a substantial portion of the
assets” of the Corporation as defined in Treasury Regulation 1.409A-3(i)(5).
k. “Separation from Service” shall mean a “separation from service” as defined in
Treasury Regulation 1.409A-1(h). Pursuant to Treasury Regulation 1.409A-1(h), a Separation
from Service shall occur on the date the Corporation and the Employee reasonably anticipate
that no further services will be performed after a certain date or that the level of bona
fide services the Employee will perform after such date (whether as an Employee or as an
independent contractor) would permanently decrease to no more than twenty percent (20%) of
the average level of bona fide services performed (whether as an employee or an independent
contractor) over the immediately preceding thirty-six (36) month period (or the full period
of services to the Corporation if the Employee has been providing services to the
Corporation for less than thirty-six (36) months).
l. “Treasury Regulations(s)” shall mean the regulations promulgated by the Treasury
Department under the Code.
Other terms may be defined in sections of this Agreement where such terms are used.
3. Normal Retirement Benefit. In the event of the Employee’s Separation from Service
from the Corporation for any reason other than death on or after the date on which the Employee
attains his Normal Retirement Age, then the Corporation shall pay to Employee an annual benefit
equal to fifty percent (50%) of the Employee’s Base Salary as of the Employee’s Normal Retirement
Date (the “Normal Retirement Benefit”). The Normal Retirement Benefit shall be payable to the
Employee in equal monthly installments, for a period of fifteen (15) years (one-hundred eighty
(180) payments) (the “Normal Retirement Benefit Payment Period”). The Normal Retirement Benefit
shall commence within thirty (30) days of the Employee’s Normal Retirement Date (with the date of
the initial payment within such period determined by the Corporation in its sole discretion) and
shall continue until the expiration of the Normal Retirement Benefit Payment Period.
4. Termination of Employment Prior to Normal Retirement Age. In the event of the
Employee’s Separation from Service before the Employee’s Normal Retirement Age for reasons other
than death, the Corporation shall pay to the Employee a lump sum amount (the “Vested Benefit”), as
follows. Where such Separation from Service occurs prior to the close of business on December 26,
2008, the Vested Benefit shall be a lump sum equal to the amount on Exhibit A applicable to 2008.
For each day beginning at the close of business on December 26, 2008 until and including the close
of business on December 31, 2008, with respect to a Separation from Service as of such times, the
Vested Benefit payable in a lump sum shall increase by one-sixth of
2
the difference between the computed Vested Benefit applicable on January 1, 2009 and the
amount on Exhibit A applicable to 2008. Where such Separation from Service occurs on or after
January 1, 2009, the Vested Benefit shall be a lump sum equal to the present value as of the date
of payment of an annual benefit equal to fifty percent (50%) of the Employee’s Base Salary as of
the Employee’s Early Retirement Date, payable in equal monthly installments for a period of fifteen
(15) years (one-hundred eighty (180) payments) commencing on the date the Employee attains his
Normal Retirement Age. The present value calculation of the Vested Benefit shall use a discount
rate equal to the Conversion Interest Rate. Notwithstanding the foregoing, if the amount payable
under this Section 4 as the Vested Benefit is less than the designated dollar amount on attached
Exhibit A as the vested amount that would apply on the relevant date of termination (the
“Minimum Lump Sum”), then the Minimum Lump Sum shall be paid in lieu thereof. The Vested Benefit
shall be paid within thirty (30) days of the Employee’s Early Retirement Date, with the date of
such payment within such period determined by the Corporation in its sole discretion.
Notwithstanding any other provision of this Agreement to the contrary, the Employee may modify the
time and form of the payment of benefits due to the Employee for a Separation from Service on or
after January 1, 2009 under this Section 4 by notifying the Corporation that the Employee elects,
in lieu of payment of the Vested Benefit as a lump sum, payment of the Vested Benefit as an annual
benefit equal to fifty percent (50%) of the Employee’s Base Salary as of the Employee’s Early
Retirement Date, paid in equal monthly installments for a period of fifteen (15) years (one-hundred
eighty (180) payments) commencing on the later of the date the Employee attains his Normal
Retirement Age and the date that is five years after Separation from Service; provided such
modification shall not take effect until at least twelve (12) months after the date the
modification is made. If an attempted modification does not meet the requirements of the preceding
sentence, then it shall be void, and the time and form of payment in effect with regard to the
Employee’s benefits under the Agreement prior to such attempted modification shall remain
effective.
5. Death Benefit.
a. Death Prior to the Employee’s Normal Retirement Age. If Employee dies while
employed by the Corporation prior to attaining his Normal Retirement Age, the Corporation
shall pay a salary continuation benefit, as set forth below, for a period ending on the date
on which the Employee would have attained his Normal Retirement Age or ten years
(one-hundred twenty (120) payments) from the date of the Employee’s death, whichever is
longer (the “Death Benefit Payment Period”). Such benefits shall (i) be payable in equal
monthly installments to the Employee’s Beneficiary; (ii) commence within thirty (30) days of
the Employee’s death (with the date of the initial payment within such period determined by
the Corporation in its sole discretion) and (iii) shall continue until the expiration of the
Death Benefit Payment Period. The annual salary continuation benefit for the first full
year following the death of Employee shall be one-hundred percent (100%) of the Employee’s
Base Salary in effect hereunder as of the Employee’s death. Thereafter, for the remainder of
the Death Benefit Payment Period, the annual salary continuation benefit shall be fifty
percent (50%) of the Employee’s Base Salary in effect hereunder as of the Employee’s death.
3
b. Death after Normal Retirement Age, but prior to the Employee’s Normal Retirement
Date. If the Employee dies after attaining his Normal Retirement Age, but prior to the
Employee’s Normal Retirement Date, the Employee’s Beneficiary shall receive the Employee’s
Normal Retirement Benefit calculated as if the Employee had experienced a Separation from
Service as of his date of death. Such benefits shall commence within thirty (30) days of
the Employee’s death (with the date of the initial payment within such period determined by
the Corporation in its sole discretion) and shall continue for the Normal Retirement Payment
Period.
c. Death after the Commencement of Benefits. If the Employee dies after his
benefit payments have commenced in installments under the applicable Section of this
Agreement, the installment payments shall continue to be paid to the Employee’s Beneficiary
in the same manner and at the same times as they would have been paid to the Employee had he
survived.
6. Delay of Payments Pursuant to Section 409A of the Code. Notwithstanding anything
to the contrary in this Agreement, if (i) the Employee is a “specified employee” (as such term is
defined under Treasury Regulation 1.409A-1(i)) of the Corporation on the date of the Employee’s
Separation from Service and (ii) in connection with such Separation From Service any payments to be
provided to the Employee pursuant to this Agreement are or may become subject to the additional tax
under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A
of the Code if provided at the time otherwise required under this Agreement, then such payments
shall be delayed until the date that is six (6) months after the date of the Employee’s Separation
from Service from the Corporation, or, if earlier, the date of the Employee’s death. Any payments
delayed pursuant to this Section 6 shall be made in a lump sum on the first day of the seventh
month following the Employee’s Separation from Service or, if earlier, the date of the Employee’s
death, and any remaining payments, if applicable, required to be made under this Agreement will be
paid upon the schedule otherwise applicable to such payments under the Agreement.
7. Funding upon a Change in Control. Upon a Change in Control, the Corporation shall
establish a “rabbi trust” in accordance with Revenue Procedure 92-64 and subsequent guidance
published by the Internal Revenue Service (the “Trust”) and shall contribute an amount sufficient
based on projected benefits to fund the Employee’s Normal Retirement Benefit. The amount of any
such contribution shall include any investment vehicles (such as Corporation-owned insurance
contracts on the life of the Employee) previously established by the Corporation in connection with
the proposed funding of benefits. Further, the Corporation shall have an ongoing obligation to
continue to make contributions to the rabbi trust in an amount sufficient to fund the Employee’s
Normal Retirement Benefit until the Employee receives the full amount of the benefit he is entitled
to receive under the Agreement. The calculation of the funding of the Employee’s Normal Retirement
Benefit shall be determined by an actuary or accountant chosen by the Corporation and such
calculation must be completed prior to the closing of any such Change in Control. The calculation
shall thereafter be performed no less often than annually in order to calculate whether additional
contributions are necessary. The actuary or accountant chosen by the Corporation shall utilize the
following principal assumptions when determining the funding required by this Section 7 at the time
any calculation is performed: (i) an interest rate equal to the Conversion Interest Rate; (ii) a
turnover rate of zero;
4
(iii) an assumption that the Employee will remain employed until his Normal Retirement Date;
and (iv) a four and one-half percent (4.5%) annual increase in Base Salary above the Base Salary
used to calculate benefits hereunder at the time any calculation is performed. The Corporation may
not remove funds which have previously been contributed to the Trust at any time, except to the
extent necessary to pay the benefits due under this Agreement. Notwithstanding the foregoing, the
assets of the Trust shall at all times remain subject to the claims of general creditors of the
Corporation in the event of its insolvency as more fully described in the Trust. Notwithstanding
the fact that a Trust shall be established under this Section 7 upon a Change in Control, the
Corporation shall remain liable for paying the benefits under this Agreement. However, any payment
of benefits to the Employee or his Beneficiary made by such Trust shall satisfy the Corporation’s
obligation to make such payment to such person. Upon satisfaction of the Corporation’s obligation
to make any and all benefit payments to the Employee or his Beneficiary, such Trust shall
terminate, and any remaining Trust assets shall be returned to the Corporation. The Trust may
contain such other terms and conditions as the Corporation may determine to be necessary or
desirable. Notwithstanding the foregoing, the Trust may not be amended or terminated (except as
provided in Section 15) upon a Change in Control or thereafter, except to the extent required to
ensure the Trust is in compliance with ERISA or the Code.
8. Claims Procedure. If any benefits become payable under this Agreement, the
Employee or his designated beneficiary shall file a claim for benefits by notifying the Corporation
orally or in writing. If the claim is wholly or partially denied, the Corporation will provide a
written notice within ninety (90) days specifying the reason for the denial, the provisions of the
Agreement upon which the denial is based, and any additional material or information necessary to
receive benefits, if any. Also, such written notice shall indicate the steps to be taken if a
review of the denial is desired. If a claim is denied and a review is desired, the Employee or his
designated beneficiary shall notify the Corporation in writing within sixty (60) days. In
requesting a review, the Employee or beneficiary may review this Agreement, and may submit any
written issues and comments he feels are appropriate. The Corporation shall then review the claim
and provide a written decision within sixty (60) days stating the specific reasons for the decision
and including references to the provisions of the Agreement on which the decision is based.
Notwithstanding the foregoing, the Employee shall be entitled to reimbursement of all costs and
expenses (including reasonable attorneys fees) incurred by the Employee or his beneficiaries, heirs
or executors in connection with any claim or proceeding to enforce this Agreement.
9. Non-Assignable Benefits. Neither the Employee nor his Beneficiary shall have any
right to sell, assign, transfer or otherwise convey or encumber the right to receive any benefits
hereunder.
10. Other Employment Benefits. Any payments under this Agreement shall be independent
of, and in addition to, employment benefits under any other plan, program or agreement which may be
in effect between the parties hereto, or any other compensation payable to the Employee or the
Employee’s Beneficiary by the Corporation.
5
11. No Contract of Employment. This Agreement shall not be construed as a contract of
employment, nor does it restrict the right of the Corporation to discharge the Employee or the
right of the Employee to terminate his employment.
12. Benefits Not Funded. Subject to Section 7 of this Agreement, the Corporation
shall be under no obligation whatsoever to purchase or maintain any contract, policy or other asset
to provide the benefits under this Agreement. Further, any contract, policy or other asset which
the Corporation may utilize to assure itself of the funds to provide the benefits hereunder shall
not serve in any way as security to the Employee for the Corporation’s performance under this
Agreement, and Employee shall have no right to, or claim against, such contract or policy. Employee
further acknowledges that with respect to the benefits provided under this Agreement, Employee’s
status is that of an unsecured creditor of the Corporation.
13. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Tennessee.
14. Amendment.
a. Amendment by the Corporation Prior to a Change in Control. Except as
provided in Section 15(a) below, this Agreement may not be altered, amended or revoked prior
to a Change in Control, except by a written agreement signed by both parties or as required
to comply with ERISA or the Code.
b. Amendment by the Corporation upon or Following a Change in Control. Upon a
Change in Control and thereafter, this Agreement may not be altered, amended or revoked by
the Corporation under any circumstances, except as required to comply with ERISA or the
Code.
15. Termination.
a. Termination by Corporation prior to a Change in Control. This Agreement may
be terminated by the Corporation under one of the following conditions:
(1) The Corporation may terminate this Agreement at its sole discretion,
provided that:
| (i) | All arrangements sponsored by the
Corporation that would be aggregated with this Agreement under
Section 1.409A-1(c)(2) of the Treasury Regulations are
terminated with respect to all Employees; |
||
| (ii) | No payments will be made, other
than those otherwise payable under the terms of this Agreement
absent the Agreement’s termination, within twelve (12) months of
the termination of the Agreement; |
6
| (iii) | All payments due to the Employee
under this Agreement will be made within twenty-four (24) months
of such termination; |
||
| (iv) | The Corporation does not adopt a
new arrangement that would be aggregated with any terminated
arrangement under Section 409A at any time within the three-year
period following the date of termination of this Agreement; and |
||
| (v) | The termination does not occur
proximate to a downturn in the financial health of the
Corporation. |
(2) The Corporation, at its discretion, may terminate this Agreement within
twelve (12) months of a corporate dissolution taxed under Section 331 of the Code,
or with the approval of a bankruptcy court pursuant to 11 U.S.C. §503(b)(1)(A),
provided that amounts deferred under this Agreement are included in the gross income
of Employee in the latest of the following years (or, if earlier, the taxable year
in which the amount is actually or constructively received):
| (i) | The calendar year in which the
termination of this Agreement occurs; |
||
| (ii) | The first calendar year in which
the amount is no longer subject to a substantial risk of
forfeiture; or |
||
| (iii) | The first calendar year in which
the payment is administratively practicable; |
(3) The Corporation may amend this Agreement to provide that termination of the
Agreement will occur under such conditions and events as may be prescribed by the
Secretary of the Treasury in generally applicable guidance published in the Internal
Revenue Bulletin.
If the Corporation terminates this Agreement pursuant to this Section 15(a), the Employee
shall be entitled to receive a lump sum payment equal to the present value of the benefit
the Employee would have received under the Agreement if he had terminated employment on the
date of such termination, which present value shall be determined as of the date of payment
using the Conversion Interest Rate as a discount rate. The lump sum payment shall be made
in accordance with and at such time as permitted by this Section 15(a) or Section 409A of
the Code .
(b) Termination by Corporation upon or Following a Change in
Control. Upon a Change in Control and thereafter, this Agreement may not
be terminated by the Corporation under any circumstances.
7
16. Guaranty. In the event of a Change in Control, the Corporation shall obtain
the guaranty of the Corporation’s obligations under this Agreement by the acquirer and the
ultimate parent entity (based on the majority of voting power and pecuniary interest in the
outstanding equity) of the Corporation or its successor after such Change in Control. The
failure of the Company to obtain such guaranty of this Agreement as reflected in an
endorsement as guarantor of the Corporation’s obligations hereunder shall constitute a
material breach of this agreement by the Corporation.
8
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Salary
Continuation Agreement as of the day and year first above written.
| X. XXXXXXXXX’X CORPORATION | ||||
| By: | R. Xxxxxxx Xxxxx, Chief Financial Officer, Vice-President, Finance |
|||
| Employee: | /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx |
|||
9
Exhibit 10.8
Exhibit A
Minimum Lump Sum
| Year of Termination | Amount Vested | |
| 2008 | $131,424 | |
| 2009 | 150,286 | |
| 2010 | 169,651 | |
| 2011 | 189,541 | |
| 2012 | 209,967 | |
| 2013 | 230,921 | |
| 2014 | 251,985 | |
| 2015 | 273,516 | |
| 2016 | 295,495 | |
| 2017 | 317,196 | |
| 2018 | 339,275 | |
| 2019 | 361,721 | |
| 2020 | 384,333 | |
| 2021 | 407,341 | |
| 2022 | 430,766 | |
| 2023 | 454,573 | |
| 2024 | 478,746 | |
| 2025 | 503,246 | |
| 2026 | 528,014 | |
| 2027 | 553,034 |
10
