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Exhibit 10.31
RETIREMENT BENEFIT AGREEMENT
This Agreement made this 1st day of January, 1998 by and between
Xxxxxxxx Corporation, a Missouri corporation (hereinafter called "Company")
and Xxx X. Xxxxxx (hereinafter called "Executive").
WHEREAS, the Executive is employed as Chairman, Chief Executive Officer
and President of Xxxxxxxx Corporation; and
WHEREAS, the Company is desirous of providing certain retirement
benefits to Executive that are in keeping with his position and duties at the
Company.
NOW THEREFORE, it is agreed as follows:
1. In consideration of Executive's commencement of employment with the
Company, and for his performance and observance of his covenants and
agreements contained herein:
(a) The Company will pay Executive for his lifetime, an annual
retirement benefit (the "Annual Benefit") equal to $15,000
multiplied by the number of full calendar years the Executive is
employed by the Company, less the amount actually payable (on an
actuarially equivalent basis if appropriate) to Executive by the
Company or its affiliates then or hereafter under any other
retirement benefit plan or contract in accordance with the terms
hereof. For purposes of this Agreement, it is understood and
agreed that the Xxxxxxxx Corporation Pension Plan (the "Pension
Plan") and the Xxxxxxxx Corporation Supplemental Plan are
retirement benefit plans contemplated by this Section 1(a).
(b) Such Annual Benefit shall be paid in equal monthly
installments commencing the first day of the month coincident with
or immediately following Executive's retirement on or after his
sixty-fifth (65th) birthday.
(c) If the Executive is married on the date of his retirement from the
Company, instead of the Annual Benefit for his lifetime, the
Company shall pay to the Executive a Contingent Annual Benefit
which shall be equal to the Annual Benefit reduced by the same
actuarially determined contingent annuitant factor as is used to
calculate the 100% contingent annuitant benefit in the Pension
Plan. In the event the Pension Plan, or a comparable plan
offering a 100% contingent beneficiary option is not in effect on
the date of retirement, the Contingent Annual Benefit will be
calculated using the actuarial contingent annuitant factor used
for a 100% contingent annuitant benefit in the Pension Plan on
January 1, 1998. The Contingent Annual Benefit shall be payable
in equal monthly installments during the lifetime of the
Executive, starting at age 65. Upon the death of the Executive,
the Company will continue to pay the Contingent Annual Benefit to
Executive's surviving spouse during the surviving spouse's
lifetime, provided the Executive and the surviving spouse were
married for at least 12 months prior to the Executive's date of
retirement. Notwithstanding anything to the contrary herein,
Executive may elect not to receive his benefit under this
Agreement in the form of a Contingent Annual Benefit, in which
case the Company shall pay the Annual Benefit to the Executive for
his lifetime, with no benefit paid to the surviving spouse. In the
event of Executive's death prior to initiation of payment of any
benefits hereunder, the Company will pay to Executive's surviving
spouse, provided the Executive and the surviving spouse were
married for at least 12 months prior to the death of the
Executive, for her lifetime, a Contingent Annual Benefit,
calculated as set out herein, commencing
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on the first day of the month coincident with or immediately
following Executive's sixty-fifth (65th) birthday.
(d) The election to receive an Annual Benefit must be in writing on
such form or forms as the Compensation Committee of the Board of
Directors of the Company shall require and must be made within 90
days following the date of retirement. The election to waive the
Contingent Annual Benefit shall be void and of no effect unless (a)
the Executive's spouse consents in writing to the election, the
spouse's consent acknowledges the effect of such election to waive
the Contingent Annual Benefit, and the spouse's consent is
witnessed by an officer of the Company or a notary public, or (b)
it is established to the satisfaction of the Board of Directors
that the spouse's consent cannot be obtained because there is no
spouse, because the spouse cannot be located or because of such
other circumstances as the are established by the Secretary of the
Treasury for similar situations relative to plans governed by the
Employee Retirement Income Security Act of 1974 ("ERISA").
(e) With the consent of the Board of Directors of the Company,
Executive may begin to receive payments at any time after he has
reached age 60 (provided he is no longer employed by the Company),
but in any such case the Annual Benefit (or Contingent Annual
Benefit if appropriate) will be discounted by three percent (3%)
for each full year that the Executive's age is less than 65.
2. In the event Executive becomes totally and presumably permanently
disabled while still employed by the Company, Executive shall be entitled to
receive, upon reaching age 65, the Annual Benefit, or Contingent Annual
Benefit, as appropriate, that he would have received had he continued to be
actively and continuously employed by the Company until attaining age 65. In
the event the Executive dies after becoming disabled, but before he starts to
receive Annual Benefits or Contingent Annual Benefits, the Executive's spouse
shall receive the contingent Annual Benefit as set out in Section 1(d) above,
calculated as if the Executive had been actively employed through the date of
death.
For the purposes hereunder, Executive shall be considered to be totally
and presumably permanently disabled if he is unable to perform the duties of
his position because of a physical or mental impairment which can be expected
to result in death or to be a long continued or indefinite duration, as
conclusively determined by a competent doctor selected by the Executive and
approved by the Company, who shall certify the results of his examination to
the Company. The Company may require Employee, if he has not reached age 65,
to be re-examined from time to time, not more frequently than once each
calendar year, to determine whether the Executive has recovered from
disability. For purposes of this Agreement, it is understood and agreed
that Executive shall be determined to be totally and permanently disabled if
he is determined to be so by the Company's long term disability carrier or by
the Social Security Administration.
If the Executive recovers from disability prior to age 65, and the
Executive is reemployed by the Company, Executive shall be treated, for
purposes of this Agreement, as if he had been continuously and actively
employed by the Company during the period of disability. If the Executive
recovers from disability prior to age 65 and is not reemployed by the
Company, Executive shall be treated for purposes of this Agreement, as if he
had been continuously and actively employed during the period of disability,
such employment terminating upon recovery from disability.
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3. It is agreed that for a period of two years following the termination of
Executive's employment with the Company, Executive shall not, without prior
written approval of the Board, become an officer, employee, agent partner or
director of any business enterprise in substantial direct competition with
the Company. For purposes of this Section 3, a business enterprise with
which the Executive becomes associated as an officer, employee, agent partner
or director shall be considered in substantial direct competition if such
entity competes with the Company in any business in which the company is
engaged and is within the Company's market area as of the date the Employment
Period expires. The above constraint shall not prevent the Executive from
making passive investments, not to exceed five percent (5%), in any
enterprise.
If the Board of Directors of the Company determines that Employee has
(or may have) violated the agreements set out in this Section 3, (i) all
payments to Executive, or to Executive's surviving spouse, under this
Agreement shall immediately cease and (ii) the company and Executive
recognizing that Executive's employment with the company has been, by virtue
of Executive's abilities, knowledge and training, unique and extraordinary,
in the event of Executive's breach of the provision of the Agreement, company
shall be entitled to injunctive or equitable relief in addition to all other
remedies available to it, since its remedy at law would be inadequate. Such
board shall not make such a determination without first having offered
Executive an opportunity to be heard concerning the alleged default.
4. If within one year from the effective date of this Agreement, the
Executive dies by suicide (as determined by the Company's Life Insurance
carrier) then no payment at all shall be payable under this Agreement to a
surviving spouse. Further, if within two years from the effective date of
this Agreement the Executive dies and the Company's life insurance carrier
rescinds, modifies or denies claim of any life policy issued by it in
conjunction with the Company's death benefit, based on material
misrepresentation in the application for any such life insurance by
Executive, then the Contingent Annual Benefits hereunder will immediately
cease.
5. In the event the Company shall elect to purchase a life insurance
contract or contracts on the life of the Executive, the Company shall at all
times be the sole and complete owner of such life insurance contract or
contracts and the sole beneficiary thereof, and shall have the full and
unrestricted right to use or exercise all values, privileges and options
available thereunder as it may desire, without the knowledge or consent of
any other person or persons, it being expressly understood and agreed that
notwithstanding any of the terms, provisions or conditions of this Agreement,
neither the Executive nor any other person, persons, executors or
administrators shall have the right, title or interest whatsoever in or to
any such life insurance contract or contracts.
6. Neither the Executive, Executive's surviving spouse or any other person
claiming through or under him shall have any right to commute, encumber, or
dispose of the right to receive payments hereunder, all of which payments and
the right thereto are expressly declared to be non-assignable; and in the
event of any attempted assignment or other disposition, the Company shall
have no further liability hereunder.
7. This agreement shall be binding on and inure to the benefit of any
successor of the Company, including but not limited to, any person, firm,
corporation or other business entity which at any time, whether by merger,
purchase, or otherwise acquires all or substantially all of the assets or
business of the Company.
8. Company agrees to reimburse Employee for any attorneys fees or cost of
collection incurred to enforce payment under the terms of this Agreement.
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9. If the Executive's employment is terminated for Cause (as such term is
defined in the Employment Agreement dated Dec. 12, 1997, by and between
Executive and the Company (the "Employment Agreement") this Agreement shall
terminate without further obligations to the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement at St. Louis,
Missouri, on the date first above written.
XXXXXXXX CORPORATION
("Company")
by: /s/ Xxxxxx X. Xxxxx
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XXX X. XXXXXX
("Executive")
/s/ Xxx X. Xxxxxx
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