EXHIBIT 10.17
R.E. XXXXXXXXXX
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, executed the 15th day of May 1987, is by and between R.E.
XXXXXXXXXX, INC. (hereinafter referred to as the "Corporation"), and Xxxxxx X.
Xxxxxx, an individual residing in the State of Ohio (hereinafter referred to as
the "Employee").
RECITALS
A. The Employee is employed by the Corporation, and the Corporation
recognizes the valuable services heretofore performed for it by the Employee
and wishes to encourage Employee's continued employment.
B. The Employee wished to be assured that Employee or Employee's family
will be entitled to a certain amount of compensation for some definite period
of time from and after Employee's retirement from active service with the
Corporation, or other termination of such employment whether by reason of
Employee's death or otherwise.
C. The parties hereto wish to provide the terms and conditions upon
which the Corporation shall pay such additional compensation to the Employee or
Employee's family after Employee's retirement or such other termination of
Employee's employment;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
ss.1. SALARY REDUCTION; FORM OF BENEFITS
Employee agrees to reduce his salary from the Corporation by the amount
designated on Schedule A hereto, which is the same amount Employee will receive
from Cordura Corporation as deferred Compensation. Employee will receive no
salary from the Corporation following the execution of this Agreement until the
salary foregone equals the above amount. Employee or his beneficiary will
receive under this Agreement either retirement or termination benefits or death
benefits (but only one), pursuant to ss. 2 and ss.3, below.
ss.2. RETIREMENT OR TERMINATION BENEFITS
In consideration of Employee's salary reduction pursuant to ss.1, above,
and of Employee's remaining in the employ of the Corporation, upon retirement or
other termination (whether voluntary or involuntary) from the Corporation,
Employee shall receive as deferred compensation the sum $9,041.50 per month
("Monthly Payment") for 180 months, payable as follows (check one upon execution
of this Agreement):
_____ (a) Commencing at age 65.
_____ (b) Commencing at age 55, provided that the Monthly
Payment shall be reduced to $6,763.04.
_____ (c) Commencing at age __ (select 56 to 64), provided
that the Monthly Payment shall be reduced by 0.21%
for each month before Employee's 65th birthday from
the initial Monthly Payment. For example, if
Employee selects age 60 (and payments commence on
his 60th birthday), the Monthly Payment would be
$7,902.27 ($9,041.50 - [60 mos. x .0021 x
$9,041.50].
X (d) Employee elects to defer the making of an
----- election as to the time of commencement and amount
of the Monthly Payments as described above until
no later than the last day of the calendar year
preceding the calendar year in which Employee's
retirement or termination from the Corporation
takes place, provided that the Employee must obtain
the consent of the Corporation (which may be
withheld at its discretion) at such time for any
commencement date other than Employee's 65th
birthday or such Monthly Payments shall commence
upon Employee's attaining age 65 as described in
(a), above.
The Corporation shall not commence making Monthly Payments until
Employee has retired from (or otherwise has terminated employment with the
Corporation, whether voluntarily or involuntarily), unless the Employee has
attained age 65 and is still in the employ of the Corporation, in which event
the Corporation shall commence making the Monthly Payments upon Employee's
attaining age 65. For purposes of calculating the amount of the Monthly Payment,
the actual, rather than earlier elected, commencement date shall govern.
In the event that the Employee should die after the Monthly Payments
have commenced but prior to their completion, the unpaid balance of the Monthly
Payments
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due determined above will continue to be paid by the Corporation to the
beneficiary referred to in ss.3, below.
ss.3. DEATH BENEFIT
In consideration of Employee's salary reduction pursuant to ss.1, above,
and of Employee's remaining in the employ of the Corporation, the Corporation
agrees that, in the event of the death of the Employee prior to receiving
Monthly Payments pursuant to ss.1, above, while still in the active employ of
the Corporation, it will commence to pay the Monthly Payments of $9,041.50
determined pursuant to ss.2 (a), above (regardless of the election selected) for
a period of one hundred eighty (180) months commencing on the first day of the
fourth month following Employee's death. In the event that Employee dies
following termination of employment with the Corporation but prior to the
commencement of Monthly Payments pursuant to ss.2, above, the amount of the
payments hereunder shall be equal to the amount of the Monthly Payment selected
pursuant to ss.2, above, but which never commenced. The Corporation shall make
payments under this ss.3 to the Employee's then living beneficiary as designated
in writing to the Corporation, if any, if none; or from and after his or her
death, then to the Employee's then living spouse, if any, if none; or from and
after such spouse's death, then to the then living children of the Employee, if
any, in equal shares; and if none, or from and after their lives, any balance
thereof in one lump sum to the estate of the Employee. A beneficiary designation
form is attached as Schedule B. However, death benefits under this ss. 3 shall
not be payable if the death of Employee results from suicide, whether sane or
insane, within two years after the later of the execution of this Agreement or
the Corporation's purchase of insurance pursuant to ss.7, below; instead the
Company shall pay to such beneficiary the lump sum designated on Schedule A.
ss.4. EMPLOYEE'S ACTIVITIES
In consideration of the foregoing agreements of the Corporation and of
the payments to be made by the Corporation pursuant thereto, the Employee hereby
agrees that, so long as Employee remains in the active employ of the
Corporation, Employee will devote substantially all of Employee's time, skill,
diligence and attention to the business of the Corporation.
ss.5. RELATIONS OF THE PARTIES
Nothing contained in this Agreement, and no action taken pursuant to its
provisions by either party hereto shall create, or be construed to create, a
trust of any kind, or a fiduciary relationship between the Corporation and the
Employee, the Employee's designated beneficiary, other beneficiaries of the
Employee or any other person.
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ss.6. EMPLOYEE'S UNSECURED GENERAL CREDITOR STATUS
The payments to the Employee or Employee's designated beneficiary or any
other beneficiary hereunder shall be made from assets which shall continue, for
all purposes, to be a part of the general assets of the Corporation, and no
person shall have, by virtue of the provisions of this Agreement, any interest
in such assets. To the extent that any person acquires a right to receive
payments from the Corporation under the provisions hereof, such right shall be
no greater than the right of any unsecured general creditor of the Corporation.
ss.7. INSURANCE POLICIES
The Corporation intends to purchase, or has purchased, an insurance
policy or policies insuring the life of the Employee to allow the Corporation to
recover the cost of providing the benefits hereunder. However, neither the
Employee, Employee's designated beneficiary nor any other beneficiary shall have
any rights whatsoever therein; the Corporation shall be the sole owner and
beneficiary thereof and shall possess and may exercise all incidents of
ownership therein.
ss.8. NOT AN EMPLOYMENT CONTRACT
Nothing contained herein shall be construed to be a contract of
employment for any term of years, nor as conferring upon the Employee the right
to continue in the employ of the Corporation in any capacity. It is expressly
understood by the parties hereto that this Agreement relates exclusively to
additional compensation for the Employee's services, payable after termination
of Employee's employment with the Corporation, and is not intended to be an
employment contract.
ss.9. PROHIBITION ON TRANSFER
Neither the Employee, Employee's spouse, nor any other beneficiary under
this Agreement shall have any power or right to transfer, assign, anticipate,
hypothecate or otherwise encumber any part of all of the amounts payable
hereunder, nor shall such amounts be subject to seizure by any creditor of any
such beneficiary, by a proceeding at law or in equity, and no such benefit shall
be transferable by operation of law in the event of bankruptcy, insolvency or
death of the Employee, Employee's spouse, or any other beneficiary hereunder.
Any such attempted assignment or transfer shall be void.
ss.10. NAMED FIDUCIARY
The Corporation is hereby designated as the named fiduciary under this
Agreement. The named fiduciary shall have authority to control and manage the
operation and administration of this Agreement, and its shall be responsible for
establishing and carrying out a funding policy and method consistent with the
objectives of this Agreement.
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ss.11. CORPORATION TO MAKE DETERMINATION
The Corporation shall make all determinations as to rights to and
amounts of benefits under this Agreement. Any decision by the Corporation
reducing the payments made hereunder or denying a claim by the Employee or
Employee's beneficiary for benefits pursuant to this Agreement shall be stated
in writing and delivered or mailed to the Employee or such beneficiary. Such
decision shall set forth the specific reasons for the reduction or denial,
written to the best of the Corporations ability in a manner that may be
understood without legal or actual counsel. In addition, the Corporation shall
afford a reasonable opportunity to the Employee or such beneficiary for a full
and fair review of the decision denying such claim.
ss.12. AUTHORITY OF THE CORPORATION'S BOARD OF DIRECTORS
Subject to the foregoing, the Board of Directors of the Corporation
shall have full power and authority to interpret, construe and administer this
Agreement. The interpretation and construction of this Agreement by the Board of
Directors of the Corporation, and any action taken thereunder, shall be binding
and conclusive upon all parties in interest. No member of the Board of Directors
of the Corporation shall, in any event, be liable to any person for any action
taken or omitted to be taken in connection with the interpretation, construction
or administration of this Agreement. so long as such action or admission to act
be made in good faith.
ss.13. AMENDMENT
This Agreement may not be amended, altered or modified, except by a
written instrument signed by the parties hereto, or their respective successors
or assigns, and may not be otherwise terminated except as provided herein.
ss.14. BINDING NATURE
This Agreement shall be binding upon and inure to the benefit of the
Corporation and its successors and assigns, and the Employee, Employee's
successors, assigns, heirs, executors, administrators and beneficiaries.
ss.15. NOTICE
Any notice, consent or demand required or permitted to be given under
the provisions of this Agreement shall be in writing, and shall be signed by the
party giving or making the same. If such notice, consent or demand is mailed to
a party hereto, it shall be sent by United States certified mail, postage
prepaid, addressed to such party's last known address as shown on the records of
the Corporation. The date of such mailing shall be deemed the date of notice,
consent or demand.
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ss.16. GOVERNING LAW
This Agreement, and the rights of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
CORPORATION:
R.E. XXXXXXXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
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Title: V.P. & Treasurer
EMPLOYEE:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
SCHEDULE A
Salary Reduction Amount
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