Exhibit 10.9
Xxxx X. Xxxxxxx Company
Supplemental Retirement Agreement
THIS AGREEMENT (the "Agreement"), dated as of January 14, 1999,
between Xxxx X. Xxxxxxx Company, a Georgia corporation (the
"Corporation"), and Xxxxxxx X. Xxxx (the "Employee").
WHEREAS, the Employee serves as President and Chief Executive
Officer of the Corporation, and is in a position to contribute
materially to the continued growth, development and future business
of the Corporation; and
WHEREAS, the Corporation desires to provide supplemental retirement
and life insurance benefits to the Employee, in accordance with the
employment letter dated October 6, 1998;
NOW, THEREFORE, the Corporation and the Employee agree as follows:
A. Supplemental Retirement Benefits.
(1) Normal Retirement Benefit: Upon retirement from the
Corporation after attaining age 65, the Employee shall be
eligible to receive from the Corporation an annual benefit of
$186,288, payable in equal monthly installments of $15,524,
for a period of 10 consecutive years.
(2) Termination Prior to Age 65: In the event the Employee's
employment with the Corporation terminates prior to age 65,
for any reason other than his death or disability or early
retirement pursuant to subparagraph (4) below, and provided
that he has completed at least 60 months of continuous active
service with the Corporation (including active service as
referred to in the last sentence of subparagraph (5) below),
his vested annual benefit at age 65 will be reduced according
to the following vesting schedule:
Date of Termination of Employment Annual Benefit
October 6, 2003 - December 31, 2004 $ 36,725
January 1 - December 31, 2005 44,709
January 1 - December 31, 2006 53,225
January 1 - December 31, 2007 62,274
January 1 - December 31, 2008 93,144
January 1 - December 31, 2009 108,047
January 1 - December 31, 2010 128,539
January 1, 2011 or thereafter 186,288
(3) Monthly installment payments to the Employee shall commence on
the first day of the month following the later of the
Employee's 65th birthday or his termination of employment with
the Corporation.
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(4) Early Retirement Benefit: If Employee retires from the
Corporation after attaining age 62, but prior to age 65, he
shall be entitled to receive, at his option, an annual benefit
of $91,947, payable in equal monthly installments, for a
period of 10 consecutive years commencing on the first day of
the month following his early retirement.
(5) Disability: In the event the Employee becomes disabled while
in active service with the Corporation, as defined by the
Corporation's long-term disability program, prior to age 65
and such disability continues until age 65, he shall commence
receiving payment of his full normal retirement benefit at age
65, regardless of whether he has completed 60 months of
continuous active service. If the Employee subsequently ceases
to be disabled prior to age 65, he shall be deemed to have
terminated service with the Corporation as of the date he
ceased to be disabled, unless he resumes service with the
Corporation within 30 days after such date. The Employee
shall be deemed to be in active service for periods during
which he is on permitted leave of absence not in excess of 2
years pursuant to a written agreement with the Corporation,
and for temporary periods of disability, provided that he
returns within 30 days after the termination of such temporary
disability or permitted leave of absence.
(6) Death Prior to Age 65: In the event the Employee dies while
in active service (including active service as referred to in
the last sentence of subparagraph (5) above) or during the
continuation of any disability, his designated beneficiary
shall receive the supplemental retirement benefit payable
under this agreement at the time of death commencing on the
first day of the month following the Employee's death and
continuing for a period of 10 years.
(7) Death Following Commencement of Benefit Payments: In the
event the Employee dies following commencement of monthly
retirement benefit payments under this Agreement, such
payments shall continue in the same amount to his beneficiary
for the remainder of the 10 years for which such retirement
benefit payments were payable to the Employee.
(8) Notwithstanding the foregoing provisions of this Agreement,
the Corporation, in the discretion of its Board of Directors,
and with the concurrence of Employee or his designated
representative or beneficiary, may prepay all or any part of
the benefits under this Agreement. The present value of the
future payments shall be determined by the Corporation. Any
prepayment shall be in full satisfaction of the obligations
hereunder to the recipient to the extent thereof.
(9) The Employee hereby designates the persons named on Exhibit A
hereto as his Primary and Contingent Beneficiaries under this
Agreement. The Employee may at any time change such
designations upon written notice to the Corporation. Any
change of Beneficiary or Contingent Beneficiary will be
effective only upon written acknowledgment by the Corporation,
a copy of which shall be promptly returned to the Employee
after execution by the Corporation.
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(10) This Agreement is intended to be an unfunded plan of deferred
compensation maintained for the Employee. The obligation of
the Corporation to make payments hereunder shall constitute a
general unsecured obligation of the Corporation to the
Employee. Such payments shall be from the general assets of
the Corporation, and the Corporation shall not be required to
establish or maintain any special or separate fund or
otherwise segregate assets to assure that such payments shall
be made. Neither the Employee nor his estate shall have any
interest in any particular asset of the Corporation by reason
of the Corporation's obligations hereunder. Nothing
contained herein shall create or be construed as creating a
trust or any other fiduciary relationship between the
Corporation and the Employee or any other person. To the
extent that any person acquires a right to receive payments
from the Corporation hereunder, such right shall be no
greater than the right of an unsecured creditor of the
Corporation.
(11) No portion of the vested retirement benefit of the Employee
shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, and
any attempt to do so shall be void. No portion of such vested
retirement benefit in any manner shall be payable to any
assignee, receiver or trustee; be liable for the Employee's
debts, contracts or other liabilities; or be subject to any
legal process.
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B. Supplemental Life Insurance Benefits.
(12) The Corporation agrees to obtain supplemental life insurance
coverage for the Employee in the amount of $750,000 (the
_Policy_). Until attaining age 66, the Employee's coverage
amount shall be $750,000. Beginning with Employee's 66th
birthday, such death benefit shall decrease by $75,000 each
year until Employee attains the age of 75, at which time all
coverage will terminate.
(13) Employee will cooperate in the securing of such Policy, and if
he is for any reason unable to obtain insurance in the
specified amount at standard rates or rates otherwise
acceptable to the Corporation, the Corporation shall have no
obligation to the Employee with respect to such insurance.
Employee will have the right to approve the insurer and the
Policy terms and conditions.
(14) The Corporation shall have no obligation of any nature
whatsoever to Employee or his beneficiaries under the Policy,
if the circumstances of the Employee's death preclude payment
of death proceeds under the Policy.
(15) The Employee's beneficiaries under the Policy are set forth on
Exhibit A. The Employee shall execute a beneficiary
designation on the form approved by the Corporation and the
Insurer.
(16) The Corporation shall be responsible for paying the annual
premiums on the Policy to the Insurer. The amount of annual
premium attributable to the Employee shall be equal to the
"current term rate" for the Employee's age multiplied by the
Employee's endorsed death benefit. This amount should be
added to the Employee's annual W-2. "Current term rate" shall
be defined as the lesser of (i) the Insurer's current
published rate for annually renewable term insurance for
standard risks or (ii) the rates specified in Revenue Rulings
64-328 and 66-110. The Corporation will reimburse Employee
(on a fully-grossed up basis) to offset the tax expense
associated with such imputed income.
(17) This Agreement shall terminate with respect to the Policy in
the event of Employee's termination of employment with the
Corporation prior to October 6, 2003, either voluntarily or
involuntarily for any reason other than death or disability,
as described in Section 18. Upon such termination, the
Employee will have no further interest in the Policy.
(18) In the event the Employee becomes disabled, as defined by the
Corporation's long-term disability program, and such
disability continues until October 6, 2003, his rights under
the Policy shall remain in effect until he attains age 75.
C. General.
(19) If any individual entitled to receive any payment under this
Agreement shall be physically, mentally or legally incapable
of receiving or acknowledging receipt of such payment, the
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Corporation, upon the receipt of satisfactory evidence (i) of
his incapacity, (ii) that another person or institution is
maintaining him, and (iii) that no guardian or committee has
been appointed for him, may cause any payment otherwise
payable to him to be made to such person or institution.
Payment to such person or institution shall be in full
satisfaction of all claims by or through the Employee to the
extent of the amount thereof.
(20) A benefit shall be deemed forfeited if the Corporation is
unable after a reasonable period of time to locate the
Employee or any party claiming under or through him to whom
payment is due; provided, however, that such benefit shall be
reinstated if a valid claim is made by or on behalf of such
person for the forfeited benefit.
(21) This Agreement shall be administered by the Board of Directors
of the Corporation. The Board shall have the authority to
amend, modify or terminate this Agreement at any time, with
the consent of Employee, provided that any such amendment,
modification or termination may not reduce the retirement
benefit of the Employee or otherwise adversely impact his
rights hereunder. No action to terminate, amend or modify
this Agreement shall be taken except upon 30 days' prior
written notice to the Employee. The Board may appoint other
persons to assist it in performing its duties and
responsibilities hereunder.
(22) Nothing contained in this Agreement shall be construed as a
contract of employment between the Corporation and the Employee,
or as a right of the Employee to be continued in the employment
of the Corporation, or as a limitation on the right of the
Corporation to discharge the Employee at any time, with or
without cause.
(23) Any notice under this Agreement shall be in writing and shall be
mailed by United States first class mail, postage prepaid, as
follows:
To the Corporation:
Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Vice President, Human Resources
To the Employee:
Xxxxxxx X. Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Either party may change the address to which notices shall be
mailed upon written notice.
(24) This Agreement shall be binding upon the Corporation and its
successors and assigns, and upon the Employee, his
beneficiaries, heirs, executors and administrators.
(25) This Agreement shall be construed and governed in all respects
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under and by the laws of the State of Georgia. If any provision
of this Agreement shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first set forth above.
Attest: Xxxx X. Xxxxxxx Company
______________________________
By:______________________________________
Witness: Employee
______________________________
____________________________________________
Xxxxxxx X. Xxxx
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