Exhibit 10.44
COMMONWEALTH LAND/TRANSAMERICA TITLE INSURANCE CO.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
THIS AGREEMENT, made this 4th day of May, 1994, between Commonwealth
Land/Transamerica Title Insurance Co., a Pennsylvania corporation with its
principal place of business at ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (the
"Corporation") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, residing at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, an executive of Corporation (the "Executive"),
WITNESSETH:
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WHEREAS, in consideration of the Executive's service to the
Corporation, and of the expectation of the Executive's continued performance of
valuable services, the Corporation wishes to provide the Executive with certain
supplemental retirement benefits hereinafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Definitions:
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(a) "Accrued Benefit" shall mean a benefit
amount equal to 30% of the Executive's Career Average Annual
Salary multiplied by his Service Percentage, payable annually
for 10 years commencing at his Normal Retirement Date.
(b) "Applicable Interest Rate" shall mean the
greater of (1) 6%, or (2) the appropriate applicable federal
rate in effect under section 1274 (d) of the Internal Revenue
Code of 1986, as amended, for the month before the benefit is
paid or commences to be paid.
(c) "Board" shall mean the Board of Directors of
the Corporation.
(d) "Career Average Annual Salary" shall mean
the average monthly base salary received by the Executive for
all complete months worked for the Corporation as a full-time
employee on and after November 1, 1993, multiplied by twelve.
(e) "Early Retirement Eligibility Date" shall
mean the first day of the month following the first month in
which the Executive has both attained the age of 55 and
completed ten Years of Service.
(f) "Normal Death Benefit" shall mean one half
of the aggregate amount of the Normal Retirement Benefit
payments to which the Executive would
have been entitled as of his Normal Retirement Date, based on
his Career Average Annual Salary as of his date of death.
(g) "Normal Retirement Benefit" shall mean a
benefit amount equal to 30% of the Executive's Career Average
Annual Salary, payable annually for 10 years, commencing at
the Executive's retirement on or after his Normal Retirement
Date.
(h) "Normal Retirement Date" shall mean the
first day of the month following the month in which the
Executive attains the age of 65.
(i) "Present Value" shall mean the present value
of the right to receive the future payment(s) discounted at
the Applicable Interest Rate.
(j) "Service Percentage" shall mean the number
of the Executive's Years of Service divided by the number of
Years of Service the Executive would have if he continued to
work until his Normal Retirement Date. For purposes of
calculating the Executive's Service Percentage, Years of
Service shall be calculated to the nearest 1/12 of a year.
(k) "Year of Service" shall mean twelve
consecutive months of the Executive's full-time employment
with the Corporation on or after November 1, 1993. The
Executive will only be credited with a month of full-time
employment if the Executive works full-time for the entire
month. In computing the Executive's Years of Service, each
credited month shall equal 1/12 of a Year of Service.
2. Normal Retirement Benefit
Subject to the conditions and limitations imposed by this
Agreement, if the Executive is still employed by the Corporation when he reaches
the Normal Retirement Date, the Corporation shall pay the Executive his Normal
Retirement Benefit commencing within 90 days following his retirement.
EXAMPLE: At the time of his retirement after reaching age 65,
the Executive has a Career Average Annual Salary of $100,000,
and the agreed upon percentage listed under Paragraph 1(g) is
30%. The Executive would receive $30,000 annually for 10
years.
3. Early Retirement Benefit
Subject to the conditions and limitations imposed by this
Agreement, an Executive may retire from the Corporation as of any date which is
on or after his Early Retirement Eligibility Date and before his Normal
Retirement Date. If the Executive retires under this Paragraph 3, the Executive
may elect, by filing a written notice with the Corporation
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at least one year in advance of his early retirement date, to receive his
Accrued Benefit in either of the following forms:
(a) as a deferred benefit commencing as of his
Normal Retirement Date; or
(b) as a reduced benefit commencing as of the
first day of any month before his Normal Retirement Date and
after his early retirement date, in which event the Accrued
Benefit shall be discounted in accordance with the Applicable
Interest Rate in effect for the month before such payments
commence.
If the Executive fails to file such an election, his Accrued Benefit shall be
paid in accordance with Paragraph 3(b) as a reduced benefit commencing as of a
date designated by the Corporation which shall not be more than 90 days
following his early retirement date.
EXAMPLE: The Executive enters into the Agreement at age 45,
with an agreed upon percentage under Paragraph 1(a) of 30%.
When he elects early retirement at age 55, the Executive has a
Career Average Annual Salary of $100,000. Since the Executive
would have worked 20 years had he stayed until the age of 65,
his Service Percentage is 50% (10 years worked/20). His
Accrued Benefit is $15,000 (100,000 x 30% x 50%). The
Executive may elect under Paragraph 3(a) to receive $15,000
annually for 10 years beginning at age 65.
If payments begin prior to age 65, the $15,000 annual benefit
amount will be reduced to reflect the time value of money. For
example, if the Applicable Interest Rate is 6% and the
Executive begins to receive payments at age 55, the Executive
would receive 10 annual payments of approximately $8,300.
4. Total Disability Benefit
Subject to the conditions and limitations imposed by this
Agreement, if the Executive becomes totally disabled while in the employ of the
Corporation, the Corporation shall pay the Executive his Accrued Benefit
commencing as of his Normal Retirement Date. Notwithstanding the foregoing, if a
majority of the Board determines that payments should commence earlier to
prevent undue hardship to the Executive, the Corporation may commence payment of
the Executive's Accrued Benefit at an earlier date, in which event the amount of
the annual payments shall be discounted in accordance with the Applicable
Interest Rate in effect for the month before such payments commence. The
decision of a majority of the Board as to whether the Executive is "totally
disabled" or whether early payments are necessary to prevent undue hardship to
the Executive shall be conclusive for the purposes of this Agreement.
5. Death of Executive
(a) Death Benefit. In the event of the
Executive's death while employed by the Corporation and prior
to his Normal Retirement Date or Early Retirement Eligibility
Date (or any determination of total disability under
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Paragraph 4), the Corporation shall pay in one lump sum to any
surviving beneficiary or beneficiaries the Executive may have
designated (or in the absence of any such beneficiary to the
Executive's surviving spouse) a death benefit, as soon as
practicable after the Executive's death. This benefit will not
be paid if any other benefit is payable under this Agreement.
If there is no surviving beneficiary and no surviving spouse,
the death benefit shall be paid to the Executive's estate.
(b) Amount of Death Benefit. If the Executive
was eligible to receive standard coverage from any life
insurance carrier from which the Corporation elected to
purchase life insurance contract(s) to satisfy its obligations
hereunder, the amount of the death benefit shall be the Normal
Death Benefit.
If the Executive was not eligible for such standard
insurance coverage at the date of this Agreement or at any
subsequent date when the Corporation sought to purchase
additional insurance to satisfy its obligations hereunder, or
if the Executive commits suicide, the amount of the death
benefit shall be the lesser of the Normal Death Benefit or the
Present Value of the Executive's Accrued Benefit as of his
date of death.
(c) Other Payments to Beneficiaries, Estate. In
the event of the Executive's death after he has reached his
Normal Retirement Date, or Early Retirement Eligibility Date
(or after a determination of total disability) and before
payments due under Paragraph 2, 3, or 4 have commenced or been
completed, the corporation shall make the remaining payments
due under this Agreement to the Executive's designated
beneficiary or beneficiaries. If at the Executive's death,
there is no beneficiary designation in effect or all
designated beneficiaries are dead, the Present Value of the
payments due shall be paid to the Executive's estate in a lump
sum. If all designated beneficiaries die after any beneficiary
begins receiving payments under the Agreement, the Corporation
shall pay the Present Value of any remaining payments in a
lump sum to the Executive's estate.
6. Designation of Beneficiaries
To designate a beneficiary or beneficiaries to receive any
amounts due under this Agreement, the Executive shall file with the Corporation
a written notice, in the form provided by the Corporation, specifying the name,
address and relationship to the Executive of each beneficiary. Any such
designation may be changed by the Executive with a new written notice.
7. Termination for Malfeasance, Dishonesty, Cause
If the Corporation terminates the employment of the Executive
prior to his Normal Retirement Date by discharging the Executive for
malfeasance, dishonesty, or such other cause as a majority of the Board in its
sole discretion deems sufficient, this Agreement shall automatically terminate,
and the Corporation shall have no obligation to make any payments whatsoever
under this Agreement.
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8. Termination Before Retirement
If the Executive terminates employment prior to his Early
Retirement Eligibility Date or Normal Retirement Date, if earlier, for any
reason other than death or total disability (within the meaning of Paragraph 4),
no benefit shall be payable under this Agreement.
9. Noncompetition Agreement
The Executive agrees that he will not hereafter, either during
employment or after his separation from employment with the Corporation, engage
in competition with the Corporation, by either working for or establishing a
business in competition with the Corporation. The judgment of a majority of the
Board that such competition exists shall be conclusive for purposes of this
Agreement. If the Executive should violate the provisions of this Paragraph, no
further payments shall be due the Executive, the Executive's spouse, any other
designated beneficiary, or their respective estates under this Agreement, and
the Corporation shall have no further obligation whatsoever hereunder.
10. Unfunded Agreement
The Executive and the Corporation intend this Agreement to be
unfunded for tax purposes and for the purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). Nothing in this
Agreement shall create an obligation on the Corporation's part to set aside or
earmark any monies or other assets specifically in order to meet any obligations
under this Agreement. Should the Corporation elect to purchase life insurance or
annuity contracts as a means of satisfying its obligations under this Agreement,
it reserves the absolute right in its sole discretion to terminate any such
contracts, as well as any other funding program, at any time, in whole or in
part.
Nothing in this Agreement and no action taken pursuant to this
Agreement shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Corporation and the Executive, his
beneficiary or any other person.
11. Rights to Benefits
At no time shall the Executive or any beneficiary be deemed to
have any title to or interest in any specific fund or assets of the Corporation,
including, but not limited to, any life insurance or annuity contracts which the
Corporation may at any time have purchased. This Agreement constitutes a mere
promise by the Corporation to make benefit payments in the future, and the right
of any person to receive such benefit payments under this Agreement shall be no
greater than the rights of other general unsecured creditors of the Corporation.
12. Nonassignability of Benefits
The Executive's and any beneficiary's right to receive
payments under this Agreement shall not be subject in any manner to
anticipation, alienation, sale, transfer,
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assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Executive or any beneficiary.
13. Administration
The Corporation shall have the responsibility and authority to
interpret, construe, and administer this Agreement. The Corporation may
designate an employee of the Corporation to exercise its powers and perform its
duties under this Agreement.
14. Claims Procedure
(a) The Executive or other individual claiming
entitlement to benefits under this Agreement (hereinafter the
"Claimant") shall file a claim request with the Corporation
with respect to such benefits.
(b) If a claim request is wholly or partially
denied, the Corporation shall furnish to the Claimant a
written notice of the decision within 90 days of such request
in a manner calculated to be understood by the Claimant, which
notice shall contain the following information:
(1) The specific reason or reasons for
the denial;
(2) Specific reference to pertinent
provisions of the Agreement upon which the denial is
based;
(3) A description of any additional
material or information necessary for the Claimant to
perfect his claim and an explanation of why such
material or information is necessary; and
(4) An explanation of the claims review
procedure, describing the steps to be taken by the
Claimant.
(c) A Claimant or an authorized representative
may, with respect to any denied claim:
(1) Request a review upon written
application filed within 60 days after receipt by the
Claimant of written notice of the denial of a claim;
(2) Review pertinent documents; and
(3) Submit issues and comments in
writing
Any request or submission shall be in writing and
shall be directed to the Corporation (or its designee).
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(d) The Corporation (or its designee) shall
render a decision upon review of a denied claim within 60 days
after receipt of a request for review. The decision on review
shall be in writing and shall include specific reasons for the
decision, written in a manner calculated to be understood by
the Claimant, as well as specific references to the pertinent
provisions of this Agreement on which the decision is based.
If the decision on review is not furnished to the
Claimant within the time limits prescribed above, the claim
shall be deemed denied on review.
15. Right to Withhold
The Corporation shall have the right to withhold from all
distributions under this Agreement any Federal, state, or local taxes required
by law to be withheld from such distribu-tions.
16. Other Agreements
The benefits under this Agreement shall be independent of, and
in addition to, benefits payable under any other agreement that may exist from
time to time between the parties hereto, or any other compensation payable by
the Corporation to the Executive whether as salary or otherwise. This Agreement
shall not be deemed to constitute a contract of employment between the parties,
nor shall any provision hereof restrict the right of the Corporation to
discharge the Executive, or restrict the right of the Executive to terminate his
employment.
17. Amendment or Termination
This Agreement may be terminated or amended in any particular
upon written notice from the Corporation to the Executive or his beneficiary,
provided that any such amendment or termination shall not deprive the Executive
or any beneficiary of any benefit to which the Executive or the beneficiary had
previously become entitled under Paragraph 2, 3, 4 or 5.
18. Binding Effect
This Agreement shall be binding upon and inure to the benefit
of the Corporation, its successors and assigns, and the Executive and his heirs,
executors, administrators, and legal representatives.
19. Arbitration
Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, if not resolved through the claims procedure
set forth in Paragraph 14, shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereover.
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20. Construction
This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Pennsylvania, except to the extent
preempted by Federal law.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
EXECUTIVE COMMONWEALTH LAND/TRANSAMERICA
TITLE INSURANCE CO.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/
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Title
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