AMENDED AND RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT AGREEMENT (this “Agreement”),
is entered into as of the 16th day of March, 2007, by and between THE XXXXXX & SESSIONS CO., an
Ohio corporation with its principal offices at Cleveland, Ohio (the “Company”), and Xxxxxxx X.
Xxxxxxxx, Xx. (“Executive”), and this Agreement supersedes and replaces in all respects the
Executive Supplemental Retirement Agreement entered into as of the 15th day of November,
2006, by and between the Company and Executive;
WITNESSETH:
WHEREAS, Executive is presently employed by the Company in a key executive position and
possesses substantial talent, ability and unique business experience which has been and will
continue to be of great value to the Company; and
WHEREAS, the Company desires to supplement Executive’s retirement and disability benefits
commensurate with his experience and value to the Company;
NOW, THEREFORE, the Company and the Executive hereby agree to the terms of the Agreement as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
1.1 A “Change of Control” shall be deemed to have occurred if any of the following
events shall occur, and if such event constitutes a change in the ownership or control of the
Company, or in the ownership of a substantial portion of the assets of the Company (for purposes of
Section 409A of the Code):
(a) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of either: (A) the then-outstanding shares of common
stock of the Company (the “Company Common Stock”) or (B) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in the election of
directors (“Voting Stock”); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from
the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any subsidiary of the Company, or
(iv) any acquisition by any Person pursuant to a transaction which complies with clauses (i), (ii),
and (iii) of subsection (c) of this Section; or
(b) Individuals who, as of the date hereof, constitute the Board of Directors of the
Company (the “Incumbent Board”) cease for any reason (other than death or disability) to constitute
at least a majority of the Board of Directors of the Company; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or nomination for
election by the Company’s shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for director, without
objection to such nomination) shall be considered as though such individual were a member of the
Incumbent Board, but excluding for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest (within the meaning of Rule
14a-11 of the Exchange Act) with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of
Directors of the Company; or
(c) Consummation of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company (a “Business Combination”), in
each case, unless, following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the Company Common Stock
and Voting Stock immediately prior to such Business Combination beneficially own, directly or
indirectly, more than fifty percent (50%) of, respectively, the then-outstanding shares of common
stock and the combined voting power of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the entity resulting from such
Business Combination (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either directly or
through one or more subsidiaries) in substantially the same proportions relative to each other as
their ownership, immediately prior to such Business Combination, of the Company Common Stock and
Voting Stock of the Company, as the case may be, (ii) no Person (excluding any entity resulting
from such Business Combination or any employee benefit plan (or related trust) sponsored or
maintained by the Company or such entity resulting from such Business Combination) beneficially
owns, directly or indirectly, twenty percent (20%) or more of, respectively, the then-outstanding
shares of common stock of the entity resulting from such Business Combination, or the combined
voting power of the then-outstanding voting securities of such corporation except to the extent
that such ownership existed prior to the Business Combination and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors of the Company, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company.
1.2 “Code” shall mean the Internal Revenue Code of 1986, as amended, and any
successor thereto.
1.3 “Company” shall mean the Company and any of its divisions and subsidiaries.
1.4 “Eligible” shall mean that Executive shall have attained age fifty-five (55) and
shall have completed five (5) years of continuous employment with the Company; provided, however,
that if a Change of Control shall have occurred, Executive shall be deemed to be “Eligible” for all
purposes of this Agreement regardless of his age or length of employment with the Company.
1.5 Termination “For Cause” shall mean prior to any termination of employment by the
Company, Executive shall have committed:
(a) an intentional act of fraud, embezzlement or theft in connection with his duties
or in the course of his employment with the Company;
(b) intentional wrongful damage to property of the Company; or
(c) intentional wrongful disclosure of secret processes or confidential information
of the Company;
and any such act shall have been materially harmful to the Company. For purposes of this
Agreement, no act, or failure to act, on the part of Executive shall be deemed “intentional” if it
was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if
done, or omitted to be done, by Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated “For Cause” hereunder unless and until there
shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote
of not less than three-quarters of the Board of Directors of the Company then in office at a
meeting of the Board of Directors of the Company called and held for such purpose (after reasonable
notice to Executive and an opportunity for Executive, together with his counsel, to be heard before
the Board of Directors of the Company), finding that, in the good faith opinion of the Board of
Directors of the Company, Executive had committed an act set forth above in this Section
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and specifying the particulars thereof in detail. Nothing herein shall limit the right of
Executive or his beneficiaries to contest the validity or propriety of any such determination.
1.6 “Key Employee” shall mean a key employee as defined in Section 409A of the Code
and Section 416(i) of the Code (without regard to paragraph (5) thereof) of the Company or a
subsidiary thereof.
1.7 “Normal Retirement Date” shall mean the first day of the month coincident with
or next following Executive’s attainment of age sixty-five (65).
1.8 “Other Plan Benefit” shall mean a benefit payable to Executive under any defined
benefit plan sponsored by the Company, any of its divisions or subsidiaries (“Other Plan”),
calculated as if payable to Executive on a life annuity basis commencing on the date supplemental
benefits commence to Executive under this Agreement (irrespective of any deferral of the
commencement of payment of such benefits thereunder).
1.9 “Permanent Disability” shall mean permanent and total disability as determined
under the Company’s Long-Term Disability Plan (the “LTD Plan”).
1.10 “Retirement Plan” shall mean The Xxxxxx & Sessions Co. Salaried Employees’
Retirement Plan, as amended from time to time.
1.11 “Retirement Plan Benefit” shall mean the amount that would be payable to
Executive under the Retirement Plan pursuant to the terms thereof (as modified herein for purposes
of this Agreement), assuming for purposes of this Agreement that Executive became a participant in
such Retirement Plan on his date of hire, and assuming further that the following Code limitations
do not apply:
(a) the limitations on the annual amount of benefits imposed by Section 415 of the
Code, or
(b) any limitation imposed by Section 401(a)(17) of the Code on the amount of
compensation taken into account under the Retirement Plan or any Other Plan.
Such benefit shall be determined on a life annuity basis, commencing on the date supplemental
benefits commence to Executive under this Agreement.
For purposes of calculating the Retirement Plan Benefit at any time when Executive does not have at
least five consecutive complete calendar years of continuous employment with the Company (the
“Initial Period”), Average Annual Compensation for purposes of determining the Retirement Plan
Benefit shall be determined as set forth in clause (i) or (ii) below, rather than pursuant to the
definition of Average Annual Compensation set forth in the Retirement Plan (it being understood
that the definition in the Retirement Plan shall apply following the Initial Period):
| (i) | for any calculation in respect of a termination of Executive’s employment in 2007 or 2008, Executive’s Average Annual Compensation shall be deemed to be equal to the sum of Executive’s annual rate of base compensation plus his annual target bonus amount, each as in effect on the date of Executive’s termination of employment; | ||
| (ii) | for any calculation in respect of a termination of Executive’s employment after 2008 but during the Initial Period, Average Annual Compensation shall be determined by multiplying Executive’s Average Monthly Compensation by 12. For this purpose, Average Monthly Compensation shall be determined by dividing Executive’s aggregate Compensation received during his Period of |
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| Continuous Employment by the number of whole months completed during his Period of Continuous Employment. For this purpose, Executive’s Period of Continuous Employment shall commence upon his Date of Hire and end upon his Termination of Employment. The terms “Compensation” and “Date of Hire” shall have the meanings set forth in the Retirement Plan. |
1.12 “Termination of Employment” shall mean a separation from service as defined
under Section 409A of the Code, as amended, and the guidance issued thereunder.
1.13 “Year of Service” means each year of Executive’s continuous employment with the
Company commencing upon his Date of Hire and ending upon his Termination of Employment. For this
purpose, Executive shall be credited with two (2) Years of Service for every one (1) year, or part
thereof, of continuous employment he completes with the Company, until such time as the Executive
is credited with a total of twenty (20) Years of Service. Thereafter, he shall be credited with
one (1) Year of Service for every year, or part thereof, of continuous employment he completes with
the Company.
2. SUPPLEMENTAL RETIREMENT BENEFITS
2.1 Retirement at Normal Retirement Date. Upon Executive’s retirement on or
after his Normal Retirement Date, and provided he is Eligible on the date of such retirement,
Executive shall be entitled to receive a supplemental retirement benefit from the Company. Such
supplemental retirement benefit shall commence as soon as administratively possible following
Executive’s Termination of Employment subject to Section 4 of this Agreement and shall be paid, on
a life annuity basis, in an amount equal to the Retirement Plan Benefit (determined solely for
purposes of Sections 5.1(b), 5.2(a)(i)(A)(2), 5.2(a)(i)(B)(2), 5.2(a)(ii)(B) and 8.2 of the
Retirement Plan as if he had completed thirty (30) years of continuous employment with the Company
on or as of the date of his retirement) minus his Other Plan Benefit, if any.
2.2 Termination of Employment Other Than For Cause Or As a Result of Death Or
Disability. In the event that Executive’s employment with the Company shall be terminated
prior to his Normal Retirement Date other than For Cause or by reason of his death or Permanent
Disability, and provided he is Eligible on the date of such termination, Executive shall be
entitled to receive a supplemental retirement benefit from the Company. Such supplemental
retirement benefit shall commence as soon as administratively possible following the earliest to
occur of (i) Executive’s Normal Retirement Date or (ii) his Termination of Employment after either
a Change of Control or Executive’s completion of five (5) years of continuous service and
attainment of age fifty-five (55), subject to Section 4 of this Agreement, and shall be paid, on a
life annuity basis, in an amount determined pursuant to the following formula:
(a) The Retirement Plan Benefit (determined solely for purposes of Sections 5.1(b),
5.2(a)(i)(A)(2), 5.2(a)(i)(B)(2), 5.2(a)(ii)(B) and 8.2 of the Retirement Plan as if he had
completed thirty (30) years of continuous employment with the Company on or as of the date of his
termination and as if his retirement benefits had commenced as of his Termination of Employment,
but extending the reduction table in Section 8.2 of the Retirement Plan from age fifty-five (55) to
Executive’s earlier age at Termination of Employment, if Executive’s employment is terminated
before he attains age fifty-five (55) following a Change of Control, such extension to provide for
a reduction of seven percent (7%) for each year that Executive’s age at the time he terminates
employment is less than age fifty-five (55)), multiplied by
(b) A fraction, the numerator of which shall be the number of Executive’s Years of
Service and the denominator of which shall be the number of Years of Service Executive would have
had if he had remained employed by the Company until his Normal Retirement Date (provided, however,
that if Executive shall have attained age sixty-two (62), the fraction referred to in this Section
shall be equal to one (1)); minus
(c) Executive’s Other Plan Benefit, if any.
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3. DISABILITY BENEFITS.
3.1 Pre-Retirement Disability Benefit. In the event that Executive incurs a
Termination of Employment with the Company by reason of his Permanent Disability and becomes
eligible for payments under the LTD Plan by reason of such Permanent Disability, and provided he is
Eligible on the date of his Termination of Employment, the Company shall pay Executive, commencing
on the date payments under the LTD Plan commence but subject to Section 4.1 below, a supplemental
disability benefit, on a monthly basis, in an amount determined pursuant to the following formula:
(a) Sixty percent (60%) of the Executive’s basic monthly earnings (as defined in the
LTD Plan); minus
(b) Monthly disability benefits paid under the LTD Plan; minus
(c) Other income benefits (as defined in the LTD Plan), except family Social
Security benefits and the benefits payable to Executive under this Agreement.
Such supplemental disability payments shall continue until the cessation of disability benefits
under the LTD Plan.
3.2 Post-Retirement Disability Benefit. In the event that Executive’s
employment with the Company shall be terminated by reason of his Permanent Disability and he would
have thereafter become eligible for a disability retirement benefit pursuant to Section 6.5 of the
Retirement Plan (assuming Executive was a participant therein), and provided he is Eligible on the
date of termination, the Company shall pay Executive, commencing upon the later of his Normal
Retirement Date or the date upon which pre-retirement disability benefits payable under Section 3.1
cease, a supplemental retirement benefit, on a life annuity basis, in an amount determined pursuant
to the formula set forth in Section 2.1 of this Agreement.
4. TIME OF PAYMENT.
4.1 Restriction On Key Employees. Notwithstanding any provision of this
Agreement to the contrary, Executive’s status as a Key Employee requires the payment of Executive’s
supplemental retirement benefit received on account of Termination of Employment to commence on the
first day of the seventh month following such Termination of Employment (or, if earlier, the date
of death).
4.2 Acceleration Prohibited. The acceleration of the time or schedule of
any payment due under this Agreement is prohibited except as provided in regulations and
administrative guidance promulgated under Section 409A of the Code.
5. METHODS OF PAYMENT. If on the date benefits under Section 2 commence
Executive is not married, such benefits shall be paid in the Life Annuity Form described in Article
VII of the Retirement Plan. If on the date such benefits commence Executive is married, such
benefits shall be paid in the Spouse’s Annuity Form described in Article VII of the Retirement
Plan.
6. POST-DEATH BENEFITS.
6.1 Death of Executive After Commencement of Supplemental Retirement
Benefits. In the event of the death of Executive on or after the date benefits under Section 2
commence, the Company shall pay to Executive’s beneficiary or beneficiaries the death benefit
(including Spouse’s Annuity), if any, provided under the form of payment pursuant to which
Executive was receiving benefits pursuant to Section 5, commencing on the first day of the month
following the month in which Executive dies.
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6.2 Death of Executive Prior to Retirement While Married. In the event of
the death of Executive while he is in the employment of the Company or a division or subsidiary
thereof, after attainment of age fifty-five (55), while he is married, and prior to his retirement,
the Company shall pay to Executive’s surviving spouse, commencing on the first day of the month
following the month in which Executive dies, a supplemental spouse’s benefit, on a life annuity
basis, in an amount determined and calculated as follows:
| (a) | (i) | The death benefit (including Spouse’s Annuity) which would have been payable under Section 9.2 of the Retirement Plan (assuming Executive was a Participant therein), without regard, however, to |
| (A) | the limitations on the annual amount of benefits set forth in Article XV of the Retirement Plan, or | ||
| (B) | any limitation imposed by Section 401(a)(17) of the Code on the amount of compensation taken into account under the Retirement Plan or any Other Plan, |
| (determined solely for purposes of Sections 5.1(b), 5.2(a)(i)(A)(2), 5.2(a)(i)(B)(2), 5.2(a)(ii)(B), and 8.2 of the Retirement Plan as if he had completed thirty (30) years of continuous employment with the Company and had retired on or as of the date of his death), multiplied by | |||
| (ii) | A fraction, the numerator of which shall be the number of Executive’s Years of Service prior to his date of death and the denominator of which shall be the number of Years of Service Executive would have had if he had remained employed by the Company until his Normal Retirement Date (provided, however, that if Executive shall have attained age sixty-two (62)), the fraction referred to in this Section shall be equal to one (1)); minus |
(b) Any Other Plan Benefit payable to the surviving spouse.
7. FORFEITURE OF BENEFITS.
7.1 Termination For Cause. In the event that the Company shall at any time
terminate Executive’s employment For Cause, it is hereby agreed that the Company shall have no
obligation under this Agreement of any nature whatsoever and that Executive’s rights and the rights
of his beneficiary or beneficiaries hereunder shall be completely and totally forfeited.
7.2 Termination of Employment Prior to Executive Becoming Eligible. In the
event that Executive’s employment with the Company shall be terminated for any reason prior to
Executive’s becoming Eligible, it is hereby agreed that the Company shall have no obligation under
this Agreement of any nature whatsoever and that Executive’s rights and the rights of his
beneficiary or beneficiaries hereunder shall be completely and totally forfeited.
7.3 Violation of Noncompetition Clause. In the event that Executive shall
engage in conduct which constitutes a violation of Section 8 of this Agreement, the Company shall
be free from any obligation to make any payments provided for under this Agreement to Executive or
to Executive’s beneficiaries, and any and all such payments shall cease.
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8. LIMITATIONS AND RESTRICTIONS ON COMPETITION. During a period ending on
the date of the first to occur of either the attainment by Executive of age sixty-five (65) or one
(1) year following termination of Executive’s employment with the Company for any reason, Executive
shall not, without the prior written consent of the Company, engage in any Competitive Activity.
For purposes of this Agreement, “Competitive Activity” shall mean Executive’s participation,
without the written consent of the Company, in the management of any business enterprise if such
enterprise engages in substantial and direct competition with the Company and such enterprise’s
sales of any product or service competitive with any product or service of the Company amount to
twenty-five percent (25%) of such enterprise’s net sales for its most recently completed fiscal
year and if the Company’s net sales of said product or service amounted to twenty-five percent
(25%) of the Company’s net sales for its most recently completed fiscal year. “Competitive
Activity” shall not include (i) the mere ownership of securities in any such enterprise and the
exercise of rights appurtenant thereto or (ii) participation in the management of any such
enterprise other than in connection with the competitive operations of such enterprise.
9. MISCELLANEOUS PROVISIONS.
9.1 Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Company and its successors and assigns. No right or interest under this Agreement
of Executive (or any person claiming through or under Executive) other than the surviving spouse of
Executive after he is deceased shall be assignable or transferable in any manner or be subject to
alienation, anticipation, sale, pledge, encumbrance or other legal process or in any manner be
liable for or subject to the debts or liabilities of Executive.
9.2 Interpretation. All questions of interpretation, construction or
application arising under this Agreement shall be decided by the Board of Directors of the Company,
whose decision shall be final and conclusive upon all persons.
9.3 Savings Clause. In the event that any provision or term of this
Agreement is finally determined by any judicial, quasijudicial or administrative body to be void or
not enforceable for any reason, it is the intent of the parties hereto that all other provisions
and terms of this Agreement shall remain in full force and effect and that this Agreement shall be
enforceable as if such void or non-enforceable provision or term had never been a part hereof.
9.4 Governing Law. This Agreement is executed in and shall be construed in
accordance with and governed by the laws of the State of Ohio without giving effect to any
provision of such laws regarding choice of laws or conflict of laws.
9.5 No Rights in Any Property of Company. The undertakings of the Company
herein constitute merely the unsecured promise of the Company to make the payments as provided for
herein; no property of the Company is or shall, by reason of this Agreement, be held in trust for
Executive, any beneficiary or any other person; and neither Executive nor any beneficiary nor any
other person shall have by reason of this Agreement any right, title or interest of any kind in or
to any property of the Company. It is intended that (i) this Agreement shall be “unfunded” for
purposes of Title I of the Employee Retirement Income Security Act of 1974, as amended, (ii)
nothing in this Agreement shall currently constitute a transfer of property for purposes of Section
83 of the Code, or any successor provision thereto, or shall cause a currently taxable benefit to
be realized by Executive or his beneficiaries pursuant to the “economic benefit” doctrine and (iii)
pursuant to Section 451 of the Code, or any successor provision thereto, amounts payable pursuant
to this Agreement will be includable in the gross income of Executive or his beneficiaries in the
taxable year or years in which such amounts are actually distributable or made available to
Executive or his beneficiaries.
9.6 Employment of Executive by Company. Nothing herein shall be construed
as an offer or commitment by the Company to continue Executive’s employment with the Company for
any period of time.
9.7 Termination by the Company. The Company may terminate this Agreement at
any time; provided, however, that no such termination shall adversely affect the rights or benefits
accrued by Executive (whether or not vested) under this Agreement prior to his receipt of notice of
such termination.
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9.8 Taxes. Notwithstanding the foregoing, the Company shall not be
obligated to guarantee any particular tax result for Executive with respect to any income
recognized by Executive in connection herewith, and Executive shall be responsible for any taxes
imposed on Executive in connection herewith.
9.9 Compliance with Section 409A of the Code. It is intended that this
Agreement comply with the provisions of Section 409A of the Code. The Agreement shall be
administered in a manner consistent with this intent, and any provision that would cause the
Agreement to fail to satisfy Section 409A of the Code shall have no force and effect until amended
to comply with Section 409A of the Code (which amendment may be retroactive to the extent permitted
by Section 409A of the Code and may be made by the Company without the consent of Executive).
9.10 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly given when received. All such
communications shall be addressed as follows:
If to the Company, to:
The Xxxxxx & Sessions Co.
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Secretary
If to Executive, to:
The Xxxxxx & Sessions Co.
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
provided, however, that if any party or his or its successors shall have designated a different
address by written notice to the other party, then to the last address so designated.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the day and year
first above written.
| THE XXXXXX & SESSIONS CO. |
||||
| By /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Chairman of the Board | ||||
| /s/ Xxxxxxx X. Xxxxxxxx, Xx. | ||||
| Xxxxxxx X. Xxxxxxxx, Xx. | ||||
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