STATE OF NORTH CAROLINA
DEFERRED COMPENSATION AGREEMENT
COUNTY OF MECKLENBURG
This Deferred Compensation Agreement is made this 14th day of June,
1999, by and between XXXXXXXX INDUSTRIES, INC., a Delaware corporation with its
principal office at Charlotte, North Carolina, hereafter referred to as the
CORPORATION, and XXXXX X. XxXXXXXX of Mecklenburg County, North Carolina,
hereinafter referred to as the EXECUTIVE.
W I T N E S S E T H:
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WHEREAS, the EXECUTIVE has been in the employ of the CORPORATION for
several years;
NOW, THEREFORE, in consideration of services performed in the past and
to be performed in the future, as well as the mutual promises and covenants
herein contained, it is agreed as follows:
1. EMPLOYMENT.
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The CORPORATION agrees to employ the EXECUTIVE as the CORPORATION may
from time to time determine. The EXECUTIVE will be required to comply with such
rules and regulations as are applicable to the specific performance of the
EXECUTIVE'S usual and customary corporate responsibilities. The EXECUTIVE will
continue in the employ of the CORPORATION in such capacity and with such duties
and responsibilities as may be assigned to him, and with such compensation as
may be determined from time to time by the Board of Directors of the
CORPORATION.
2. DEFERRED COMPENSATION.
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If the EXECUTIVE continues in the employment of the CORPORATION until
he attains the age of sixty-five (65), which date is hereby established as
October 2, 2027, he may retire from active service and the CORPORATION will pay
to him one hundred eighty (180) monthly installments of $7,305 each until he
attains the age of eighty (80) years, or until his death, whichever first
occurs. The first monthly installment will be due the first day of the month
following his retirement. If the EXECUTIVE dies after age sixty-five (65) but
before age eighty (80) and while receiving the foregoing monthly payment, there
will be payable a like sum in monthly installments of $7,305 each to such
individuals or trusts as the EXECUTIVE may have designated in writing, as filed
with and approved by the CORPORATION, until the expiration of fifteen (15) years
next following the date of the retirement of the EXECUTIVE. In the absence of
any effective designation of beneficiary any such amounts becoming due and
payable upon the death of the EXECUTIVE will be payable to his duly qualified
executor or administrator.
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3. DEATH.
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If the EXECUTIVE dies while employed by the CORPORATION at any time
after the date of this Agreement but before his attaining the age of sixty-five
(65) years, the CORPORATION will pay the sum per month specified below for the
year of decease for a period of one hundred and eighty (180) months to such
individuals or trusts as the EXECUTIVE may have designated in writing, as filed
with and approved by the CORPORATION. The said monthly payments will begin the
first day of the month following the month in which the EXECUTIVE dies. In the
absence of any effective designation of beneficiary any such amounts becoming
due and payable upon the death of the EXECUTIVE will be payable to his duly
qualified executor or administrator. The sum payable per month, as provided
above, is as follows:
SCHEDULE OF DEATH BENEFITS
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YEAR OF DEATH MONTHLY INSTALLMENTS
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1999 THROUGH 2027 $9,270
Any excess death benefit available on account of any insurance
purchased on the life of the EXECUTIVE will be paid to the EXECUTIVE's
beneficiary.
If the EXECUTIVE dies within two (2) years after the execution of this
Agreement, and if his death is a result of suicide, then, and in such event, the
death benefit provided by this section will not be payable.
4. DISABILITY.
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If during the period of active service before October 2, 2027,
EXECUTIVE becomes totally and permanently disabled, which disability renders him
unable to perform his duties in a manner satisfactory to the CORPORATION, the
CORPORATION by a resolution duly adopted by its Board of Directors may terminate
the active service of the EXECUTIVE. In the event of such disability and
termination of active service, the CORPORATION will pay the EXECUTIVE the lesser
of sixty percent (60%) of his monthly salary just before his disability, or
$8,000 per month, such payments to commence after a ninety (90) day waiting
period, and payable monthly thereafter until the EXECUTIVE reaches age
sixty-five (65) or October 2, 2027. If the EXECUTIVE reaches age 65 while
disabled the CORPORATION will abide by the provisions of Article 2 of this
Agreement. If the EXECUTIVE dies between the time he becomes disabled and the
date he reaches age sixty-five (65) the CORPORATION will abide by the provisions
of Article 3.
5. RESIGNATION, ETC.
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If the EXECUTIVE voluntarily resigns or otherwise voluntarily
terminates his employment with the CORPORATION, or if he is discharged for
fraudulent actions, before October 2, 2027, this Agreement will terminate upon
the date of such resignation, other voluntary termination of employment or
discharge, and no other benefits or payments of any kind are to be made
hereunder.
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A. If the employment of the EXECUTIVE terminates before
October 2, 2027, other than by his voluntary action, his disability, his death
or his discharge for fraudulent actions, then this Agreement will terminate upon
the date of such termination of employment, and the CORPORATION will pay to the
EXECUTIVE as severance compensation in the amount outlined in the following
schedule, predicated on the year in which severance occurs. These amounts will
be paid to the EXECUTIVE in one hundred eighty (180) monthly installments
commencing with the first day of the month following the month in which such
severance occurs:
SCHEDULE OF SEVERANCE PAYMENTS
YEAR OF TERMINATION MONTHLY INSTALLMENTS
1999 $ 8
2000 17
2001 101
2002 198
2003 301
2004 408
2005 520
2006 638
2007 762
2008 892
2009 1,028
2010 1,216
2011 1,442
2012 1,693
2013 1,962
2014 2,245
2015 2,543
2016 2,855
2017 3,180
2018 3,519
2019 3,863
2020 4,234
2021 4,621
2022 5,026
2023 5,448
2024 5,888
2025 6,345
2026 6,820
2027 7,305
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If the EXECUTIVE should die after such involuntary severance but before
the completion of the monthly payments provided for in this Article, the
remaining installments will be paid to such individual or individuals or Trusts
as the EXECUTIVE may have designated in writing, as filed with and approved by
the CORPORATION. In the absence of any effective designation of beneficiary, any
such amount will be payable to the duly qualified Executor or Administrator of
the EXECUTIVE.
6. LIMITATIONS ON BENEFITS.
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Neither the EXECUTIVE nor any beneficiary under this Agreement will
have any power or right to transfer, assign, anticipate, mortgage, commute, or
otherwise encumber in advance any of the benefits payable hereunder, nor will
said benefits be subject to seizure for the payment of any debt or judgment of
any of them, or be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. If the foregoing restriction is violated, all benefits
will cease and terminate.
7. OTHER BENEFITS.
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Nothing contained in this Agreement will be construed to alter, abridge
or in any manner affect the rights and privileges of the EXECUTIVE to
participate in any Pension, Profit Sharing, or other qualified Retirement Plan
which the CORPORATION may now or hereafter have.
8. BINDING AGREEMENT.
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This Agreement will be binding upon and inure to the benefit of the
EXECUTIVE and his personal representatives, and the CORPORATION, and any
successor organization which succeeds to substantially all of its assets and
business.
9. NOTICE.
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Any notice or communication required of either party with respect to
the Agreement will be made in writing and may either be delivered personally or
sent by first class mail to the parties at the addresses set out below:
A. To CORPORATION:
XXXXXXXX INDUSTRIES, INC.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxxx, President
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B. To EXECUTIVE:
Xxxxx X. XxXxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Each party will have the right by written notice to change the place to which
any notice may be addressed.
10. NOT AN EMPLOYMENT CONTRACT.
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This Agreement will not be deemed to constitute a contract of
employment between the parties hereto, nor will any provision hereof restrict
the right of the CORPORATION to discharge the EXECUTIVE, or restrict the right
of the EXECUTIVE to terminate his employment.
11. TRADE SECRETS.
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EXECUTIVE agrees that CORPORATION's relation with its customers is one
of its most valuable assets, and that the identity, equipment needs, new product
developments, and the like of both CORPORATION and its customers is of a
confidential nature. Such information is herein called "trade secrets".
Trade secrets include documents supplied to EXECUTIVE by CORPORATION, or
prepared by EXECUTIVE as a consequence of the duties of his employment by
CORPORATION, including customer lists, sales records, and trade secrets as
otherwise defined by law. Therefore, in consideration of the premises, and of
CORPORATION's need to protect its trade secrets, the parties agree as follows:
A. EXECUTIVE agrees to retain in strict confidence and not to
use without the written consent of CORPORATION any trade secrets received by
EXECUTIVE pursuant to his employment by CORPORATION, other than for the purposes
of carrying out his duties as its employee.
B. If EXECUTIVE leaves the employment of CORPORATION for any
reason whatsoever, he agrees that he will not engage in the activity of selling
any equipment which is the same as or similar to the equipment sold by the
CORPORATION during his term of employment, in competition with the sales
activities of CORPORATION, within a radius of 150 miles of CORPORATION's office
in Charlotte, North Carolina for a period of three (3) years after any
termination of EXECUTIVE's employment with corporation.
C. The parties acknowledge that any breach of the covenants
contained in this paragraph 11 would entail irreparable injury to the good will
of CORPORATION and would jeopardize its competitive position in its market
place. Accordingly, EXECUTIVE agrees that any breach on his part of the matters
hereinabove undertaken to be observed and performed by him would entitle
CORPORATION as a matter of right to a restraining order and/or an injunction to
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restrain him from the breach of the said undertaking and to other equitable
relief to prevent any such actual intended or likely breach, as well as its
remedies available at law, including the right to suspend or terminate any
monthly payment that may otherwise be due under this Agreement. EXECUTIVE
consents that CORPORATION may instruct any insurance company or trustee issuing
or holding any insurance policy related to this Agreement to suspend or
terminate any payment that otherwise may be due, on account of a breach of this
paragraph 11.
IN WITNESS WHEREOF, the parties have executed this Agreement pursuant
to authority duly given.
(CORPORATE SEAL) XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, President
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ATTEST: XXXXXX X. XXXXXXXX
President
/s/ Xxxx Xxxxxxx
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Assistant Secretary /s/ Xxxxx X. XxXxxxxx
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XXXXX X. XxXXXXXX
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