LONG TERM INCENTIVE COMPENSATION PLAN AND AGREEMENT WITH Gordon B. Thomas
Exhibit 10.25
LONG TERM INCENTIVE COMPENSATION PLAN AND AGREEMENT
WITH Xxxxxx X. Xxxxxx
WITH Xxxxxx X. Xxxxxx
THIS LONG TERM INCENTIVE COMPENSATION PLAN AND AGREEMENT (this “Agreement”) is made this 2nd
day of November, 2006, by and between XXXXXXX XXXXXX COMPANIES, INC., a Maryland corporation (the
“Company”), and Xxxxxx X. Xxxxxx, an employee of the Company (“Participant”).
RECITALS:
A. The Company believes it is in the best interests of the Company and Participant to
establish a plan for the purpose of providing certain benefits for Participant (the “Long Term
Incentive Compensation Plan”).
B. The Company desires to recognize the valuable and meritorious service performed
on behalf of the Company and to offer an inducement to Participant to remain as an employee in the
form of long term incentive compensation for services which he/she has rendered or will hereafter
render.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 Employment
The Company employs Participant as an at will employee. This Agreement is solely to provide
long term incentive compensation for services rendered by Participant to the Company and is
neither an agreement nor commitment by the Company to continue to employ Participant, nor an
agreement or commitment of Participant to continue to serve the Company in any capacity. The terms
of Participant’s employment shall continue to be governed exclusively by the Company’s policies
and procedures.
ARTICLE II
BENEFIT
Section 2.1 Amount and Payment of Long Term Incentive Compensation
(a) For and in consideration of Participant’s services to the Company, subject to the
terms of this Agreement, the Company shall and hereby does establish for the benefit of Participant
a long term incentive compensation account (the “Account”) on the terms and conditions hereinafter
provided. Each year during Participant’s employment, the Company may credit a discretionary amount
to the Account determined in the manner hereinafter provided. It is contemplated that for future
years the Company, prior to the commencement of each plan fiscal year on October 1st, will
establish performance or other criteria on which that year’s amount will be established and will
send written notice thereof to Participant. Nevertheless, the bonus program and the amounts
contemplated hereunder shall be within the sole discretion of the Company, and the Company shall be
under no obligation whatsoever beyond what is established (if anything) prior to the commencement
of a particular plan year.
(b) Participant’s rights with respect to the initial amount and each annual additional amount
shall vest over the term of Participant’s employment with the Company at the rate of twenty percent
(20%) per year for each plan year Participant is employed by the Company after the establishment of
the Account. The annual vesting shall occur on the 30th of September of each year, with
the first 20% vesting on September 30, 2007. If Participant’s employment with the Company
terminates for any reason whatsoever (other than death or permanent disability, as defined below),
including but not limited to termination by the Company without cause, Participant shall forfeit
all rights in the unvested portion of the Account (including any income thereon credited pursuant
to Section 2.2), which amount shall immediately revert to and be withdrawn by the Company. By way
of example, if Participant terminates his/her employment after three (3) years of employment by the
Company after the establishment of the Account, Participant shall forfeit forty percent (40%) of
the first year credited amount; sixty percent (60%) of the second year credited amount, and eighty
percent (80%) of the third year credited amount. In the event of Participant’s death, or permanent
disability which results in the termination of his/her employment, all unvested amounts credited to
the Account shall vest immediately and the entire balance of the Account shall be paid out to
him/her, his/her estate or his/her designated beneficiary within ninety (90) days thereof. For
purposes of this paragraph (d), permanent disability shall mean Participant is unable to perform
the customary tasks and duties assigned to him/her for 270 days out of any consecutive 365 day
period. Participant’s rights will also fully vest in any unvested amounts upon retirement from
active employment with the Company after attaining the age of sixty-five (65). Nothing herein
shall obligate the Company to make any specific contributions or additional amounts to the Account
or to continue this Long Term Incentive Compensation Plan for any specified period of time, the
Company expressly reserving the right to terminate and discontinue this Long Term Incentive
Compensation Plan at any time; provided, however, such termination shall not have any impact or
affect on additional amounts or contributions made prior to such termination. The Company makes
no representations or warranty regarding the tax consequences of this Long Term Incentive
Compensation Plan and Agreement. All payments made from the Account to Participant shall be subject
to appropriate federal income tax and other applicable withholding tax.
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(c) Participant must be employed by the Company on the last day of each applicable plan
fiscal year (i.e., September 30) in order to be entitled to the contribution contemplated and
determined for that year. In addition, notwithstanding anything in this Agreement to the contrary,
in the event Participant’s employment with the Company terminates for any reason whatsoever prior
to September 30, 2008 (other than due to death or permanent disability), including, but not
limited to, termination by the Company without cause, Participant shall forfeit all rights
hereunder to any payment, including any amounts that have otherwise vested. Commencing on
September 30, 2008, and on each anniversary thereafter (provided Participant is employed by the
Company on such date), all amounts vested as of such date will be paid to Participant in a lump
sum within thirty (30) days following the end of such plan fiscal year. By way of example, if the
sum of $100,000 is credited to Participant’s Account in each of the first two (2) years, then, in
such event, following the end of the second (2nd) year, Participant will receive a payment of
$60,000 ($40,000 + $20,000). At the end of the third (3rd) year, assuming an additional
contribution of $100,000 has been made, Participant will receive a payment of $60,000 ($20,000 +
$20,000 + $20,000).
Section 2.2 Accretion to Account
The Account shall be credited annually in an amount equal to Wall Street Journal Prime Rate
multiplied by the average outstanding amount credited to the Account for such fiscal year. The
additional credit pursuant to this Section 2.2 shall be made annually on the last day of each plan
fiscal year utilizing the Wall Street Journal Prime Rate in effect as of such date. The interest
credited to the Account shall vest as set forth in Section 2.1(b) above and shall be paid out as
set forth in Section 2.1(c) above.
Section 2.3 No Right to Specific Assets
While the Account shall be for the benefit of Participant, it shall at all times be an
unfunded account and the Company shall have no obligation to reserve or otherwise set aside any
amounts in respect of the Account. Participant’s rights shall be solely to receive the benefits
determined in accordance with this Agreement. Participant shall have no claim, right, title, or
interest or claim in any specific asset, fund, reserve, account or property of any kind whatsoever
owned by the Company or in which it may have a right, title or interest, now in the future. No
provision or terms contained herein or the establishment of any account or records on the books of
the Company in furtherance of carrying out the provisions of this Agreement shall be deemed to
create a trust or escrow arrangement of any kind, or create a fiduciary relationship, between the
Company and Participant.
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ARTICLE III
MISCELLANEOUS
Section 3.1 Governing Law
This Agreement shall be subject to, and governed by, the laws of the Commonwealth of
Virginia irrespective of the fact that one or more of the parties now is, or may become, a resident
of a different state.
Section 3.2 Void Language
In the event any parts of this Agreement are found to be void, the remaining provisions
of this Agreement shall nevertheless be binding with the same effect as though the void parts were
deleted.
Section 3.3 Agreement Binding
This Agreement shall be binding upon the parties hereto, their heirs, executors,
administrators, successors and assigns.
Section 3.4 Amendment
This Agreement may be amended at any time, and from time to time, by a written
instrument executed by a duly authorized officer of the Company and the Participant.
Section 3.5 Claims for Benefit
Claims for benefits under this Agreement shall be made in writing to the Company. If
such claim for benefits is wholly or partially denied, the Company shall, within a reasonable
period of time, but no later than ninety (90) days after receipt of the claim, notify the claimant
of the denial of the claim. Such notice of denial (i) shall be in writing, (ii) shall be written in
a manner calculated to be understood by the claimant, and (iii) shall contain (a) the specific
reason or reasons for denial of the claim, (b) a specific reference to the pertinent provisions
upon which the denial is based, (c) a description of any additional material or information
necessary for the claimant to perfect the claim, along with an explanation why such material or
information is necessary, and (d) an explanation of the claim review procedure.
Section 3.6 Request for Review of Denial of Claim
Within one hundred twenty (120) days of the receipt by the claimant of the written
notice of denial of the claim, or such later time as shall be deemed reasonable taking into
account the nature of the benefit subject to the claim and any other attendant circumstances or if
the claim has not been granted within a reasonable period of time, the claimant may file a written
request with the Company that it conduct a full and fair review of the denial of the claimant’s
claim for benefits, including the conduction of a hearing, if deemed necessary by the reviewing
party. In
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connection with the claimant’s appeal of the denial of his benefit, the claimant may review
pertinent documents and may submit issues and comments in writing.
Section 3.7 Decision on Review of Denial of Claim
The Company shall deliver to the claimant a written decision on the claim promptly, but not
later than sixty (60) days, after the receipt of the claimant’s request for review, except that if
there are special circumstances (such as the need to hold a hearing) which require an extension of
time for processing, the aforesaid sixty (60) day period shall be extended to one hundred twenty
(120) days. Such decision shall (a) be written in a manner calculated to be understood by the
claimant, (b) include specific reasons for the decision, and (c) contain specific references to the
pertinent provisions upon which the decision is based.
Section 3.8 No Assignment
The rights of Participant to any payments hereunder are not subject to the voluntary or
involuntary transfer, alienation or assignment, and to the fullest extent permitted by law are not
subject to attachment, execution, garnishment, sequestration or other legal or equitable process.
Section 3.9 Entire Agreement
This Agreement sets forth all of the promises, agreements and understandings of the parties
hereto with respect to the matters described herein, and there are no promises, agreements or
understandings, oral or written, express or implied, between them with respect to such matters.
Any and all prior promises, agreements and understandings between the parties hereto with respect
to the matters described herein, are hereby revoked.
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IN WITNESS WHEREOF, the parties hereto have executed this Long Term Incentive Compensation
Plan and Agreement on the day and year first above written.
| XXXXXXX XXXXXX COMPANIES, INC. | ||||||
| By: | /s/ Xxxxxx X. Alloy | |||||
| Name: Xxxxxx X. Alloy | ||||||
| Title: President | ||||||
| PARTICIPANT | ||||||
| /s/ Xxxxxx X. Xxxxxx | ||||||
| Xxxxxx X. Xxxxxx | ||||||
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