Exhibit 10.9
AMENDMENT NUMBER ONE
TO THE
PLAN AGREEMENT
THIS AMENDMENT NUMBER ONE TO PLAN AGREEMENT ("AMENDMENT") is made and
entered into, as of this 30th day of August, 2004 (the "EFFECTIVE DATE"), by and
between Xxxxxx International, Inc. (the "COMPANY") and Xxxxxxx X. Xxxxx (the
"PARTICIPANT").
WITNESSETH:
WHEREAS, the Company previously established the Xxxxxx International, Inc.
Supplemental Executive Retirement Plan, effective January 1, 2002 (the "PLAN"),
whereby a select group of management and highly compensated employees of the
Company are entitled to receive specified benefits under the Plan;
WHEREAS, the Participant was selected to participate in the Plan and as a
result the Company and the Participant previously entered into that certain Plan
Agreement, dated December 13, 2002, a copy of which is attached hereto and
incorporated herein as EXHIBIT A (the "PLAN AGREEMENT");
WHEREAS, the Company and the Participant previously entered into that
certain Executive Employment Agreement, dated as of January 1, 2003 which shall
be amended and restated by a certain Amended and Restated Executive Employment
Agreement (the "EMPLOYMENT AGREEMENT");
WHEREAS, the parties hereto desire to amend the Plan Agreement upon the
terms and conditions set forth in this Amendment; and
WHEREAS, capitalized terms used herein but not defined herein shall have
the meanings specified in the Plan;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
AMENDMENTS
1. Paragraph 4 of the Plan Agreement is hereby deleted in its entirety
and replaced with the following:
"4. SERP BENEFIT. The Participant's SERP Benefit shall be a monthly
amount, payable for the life of the Participant commencing as of the date
determined in accordance with Article 3 of the Plan Document, equal to the
product of:
(a) Three percent (3%), MULTIPLIED BY
(b) the product of (i) the Participant's Years of Service,
MULTIPLIED BY (ii) the Participant's Average Compensation; and reduced
by
(c) The Actuarial Equivalent value of any amounts that the
Participant is entitled to under the Xxxxxx International, Inc.
Pension Plan or any successor defined benefit pension plan.
For the purposes of this Plan Agreement, the consummation of a plan of
reorganization of the Company and the transactions contemplated thereby as
approved by the Bankruptcy Court for the Southern District of Indiana with
respect to the filing of a voluntary petition for bankruptcy by the Company
under Chapter 11 of Title 11 of the U.S. Code (11 USC Section 101, ET.
SEQ.) in the U.S. Bankruptcy Court for the Southern District of Indiana
shall not constitute a Change in Control.
2. Paragraph 8 is hereby inserted as a new paragraph in the Plan
Agreement immediately following Paragraph 7 and shall be as follows:
"8. ACKNOWLEDGEMENT AND AGREEMENT. The Participant hereby
acknowledges and agrees that the provisions of this Agreement, and the
Company's obligations hereunder, fully satisfy the Company's obligations
under SECTION 1(e)(vii) of the Employment Agreement.
3. This Amendment may be executed in two (2) counterparts, each of which
shall be deemed an original, but both of which shall constitute one and the same
instrument. The validity,
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meaning and effect of this Amendment shall be determined in accordance with the
laws of the State of Indiana applicable to contracts made and to be performed in
that State.
4. This Amendment amends the Plan Agreement to the extent provided herein
only and all other provisions thereof shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
Effective Date.
"PARTICIPANT"
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
"COMPANY"
XXXXXX INTERNATIONAL, INC.
Compensation Committee
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Signature of Committee Member
Xxxxxxx X. Xxxxxx
--------------------------------
Type or Print Name
[Exhibit A - Plan Agreement under the Supplemental Executive Retirement
Plan Agreement has been omitted from the Agreement as filed with the Securities
and Exchange Commission (the "SEC"). The omitted information is filed as Exhibit
10.08 to the Registration Statement. The Registrant will furnish supplementally
a copy of any of the omitted exhibit to the SEC upon request from the SEC.]
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