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THIS AGREEMENT is entered into this 5th day of October,
1992, by and between VALLEY WELDING SUPPLY COMPANY, a corporation
having its principal office at 00 00xx Xx., Xxxxxxxx, Xxxx
Xxxxxxxx 00000, hereinafter called the "Corporation, and XXXX
XXXXXXXX, a resident of 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, hereinafter called the "Employee".
WITNESS:
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WHEREAS, the Employee has been employed by the
Corporation for a number of years, and is currently employed by
the Corporation;
WHEREAS, the Corporation is motivated to retain the
valuable services and business counsel of the Employee and to
induce the Employee to remain in his employment capacity with the
Corporation;
WHEREAS, the Corporation wishes to retain the Employee
in order to prevent a financial loss which the Corporation would
incur if the Employee were to leave;
WHEREAS, the Employee is willing to continue in the
employment of the Corporation;
WHEREAS, the Employee is considered a highly
compensated employee or member of a select management group of
the Corporation.
NOW, THEREFORE, the parties agree as follows:
1. CONDITIONS.
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a. The payment of benefits to the Employee or
his designated recipient(s) under this Agreement is conditioned
upon the continuous employment of the Employee with the
Corporation
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(including periods of disability and authorized leaves of absence as
described in this Agreement) until his retirement or his death,
whichever is the sooner, and upon the Employee's compliance with the
terms of this Agreement.
b. Payment of benefits is further conditioned
upon the Employee not acting in any similar employment capacity
for any business enterprise which competes to a substantial
degree with the Corporation, nor engaging in any activity
involving substantial competition with the Corporation, during
his employment with the Corporation, after his retirement from
the Corporation or after his prior disability while he is
receiving benefits, without the prior written consent of the
Corporation.
2. PRERETIREMENT DEATH BENEFIT.
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a. If the Employee dies during the period of his
active employment, or during a disability as defined under
Section 3 of this Agreement, payments shall be made as provided
in the attached "Schedule A", made a part hereof.
b. Such payments shall be made by the
Corporation to such person(s) as the Employee shall designate in
writing prior to his death. The Employee shall have the right to
change the designated recipient(s) of these payments by
presenting a written amendment to the Corporation prior to his
death in a form as provided in "Schedule B", attached hereto and
made a part hereof.
c. If the Employee's spouse is the designated
beneficiary of these payments, and the spouse shall begin
receiving payment but dies prior to receiving all payments, the
balance of the payments shall be paid to the spouse's estate. In
the event the Employee shall fail to designate a recipient prior
to his
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death, the payments shall be made to the Employee's surviving
spouse as provided above, if alive; otherwise to the Personal
Representative of the Employee's estate.
d. However, this benefit shall not be payable if
the Employee's death results from suicide, whether sane or
insane, within two years after the execution of this Agreement.
3. DISABILITY BENEFIT. If prior to the retirement of
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the employee, such Employee becomes totally and permanently
disabled as the result of an injury or a sickness, and such total
disability prevents the Employee from performing all of the
substantial and material duties of his regular occupation, the
Corporation agrees to pay the Employee payments in the sum of
$1,000 per year for a maximum period of five (5) years, as long
as the said disability exists, payable in equal monthly
installments. If, after this five year period of disability, the
Employee is unable to perform all of the substantial and material
duties of any occupation for which he is reasonably fitted by
education, training or experience and such disability is the
result of injury or sickness, the Corporation will continue the
said $1,000 annual payments, payable in equal monthly
installments for the duration of his/her disability or until age
65, whichever occurs first.
4. SALARY CONTINUATION AND POSTRETIREMENT DEATH
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BENEFIT. If the Employee is still in the employ of the
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Corporation at retirement under this Agreement, whether or not
disabled, the Corporation shall, within thirty (30) days after
the Employee's retirement, commence monthly payments as provided
in the attached "Schedule C", made a part hereof. The
Corporation shall withhold federal and state income taxes from
these payments to the extent
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required by the law in effect at the time these payments are
made. In the event the Employee should die after these payments
have begun, but before the end of the eighty-four monthly
payments, the unpaid balance of the payments due shall be
continued to be paid by the Corporation to the recipient as
designated in Section 2 herein.
5. NAMED FIDUCIARY AND CLAIMS PROCEDURE.
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A. The Named Fiduciary of the plan for purposes of
the claims procedure under this Agreement is the Secretary of the
Corporation; currently Xxxxxxxx X. Xxxxx.
1. The business address and telephone number of
the Named Fiduciary under this Agreement is: Address: 00
00xx Xx., Xxxxxxxx, Xxxx Xxxxxxxx 00000; telephone: (304) 232-
1541.
2. The Corporation shall have the right to
change the Named Fiduciary of the plan created under this
Agreement. The Corporation shall also have the right to change
the address and telephone number of the Named Fiduciary. The
Corporation shall give the Employee written notice of any change
of the Named Fiduciary, or any change in the address and
telephone number of the Named Fiduciary.
B. Benefits shall be paid in accordance with the
provisions of this Agreement. The Employee, or a designated
recipient, or any other person claiming through the Employee
(hereinafter collectively referred to as the "Claimant") shall
make a written request for the benefits provided under this
Agreement. This written claim shall be mailed or delivered to
the Named Fiduciary.
C. If the claim is denied, either wholly or
partially, notice of the decision shall be mailed to the claimant
within a
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reasonable time period. This time period shall not exceed more
than 90 days after the receipt of the claim by the Named
Fiduciary.
D. The Named Fiduciary shall provide a written notice
to every Claimant who is denied a claim for benefits under this
Agreement. The notice shall set forth the following information:
1. the specific reasons for the denial;
2. the specific reference to pertinent plan
provisions on which the denial is based;
3. a description of any additional material or
information necessary for the Claimant to perfect the claim and
an explanation of why such material or information is necessary;
and
4. appropriate information and explanation of
the claims procedure under this Agreement so to permit the
Claimant to submit his claim for review.
All of this information shall be set forth in
the notice in a manner calculated to be
understood by the Claimant.
E. The Claims procedure under this Agreement shall
allow the Claimant a reasonable opportunity to appeal a denied
claim and to get a full and fair review of that decision from the
Named Fiduciary.
1. The Claimant shall exercise his right of
appeal by submitting a written request for a review of the denied
claim to the Named Fiduciary. This written request for review
must be submitted to the Named Fiduciary within sixty (60) days
after receipt by the Claimant of the written notice of denial.
2. The Claimant shall have the following rights
under this appeal procedure:
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a. to request a review upon written
application to the Named Fiduciary;
b. to review pertinent documents with
regard to the employee benefit plan created under this Agreement;
c. the right to submit issues and comment
in writing;
d. to request an extension of time to make
a written submission of issues and comments; and
e. to request that a hearing be held to
consider Claimant's appeal.
F. The decision on the review of the denied claim
shall promptly be made by the Named Fiduciary:
1. within sixty (60) days after the receipt of
the request for review if no hearing is held; or
2. within one hundred twenty (120) days after
the receipt of the request for review, if an extension of time is
necessary in order to hold a hearing.
a. If an extension of time is necessary in
order to hold a hearing, the Named Fiduciary shall give the
Claimant written notice of the extension of time and of the
hearing. This notice shall be given prior to any extension.
b. The written notice of extension shall
indicate that an extension of time will occur in order to hold a
hearing on Claimant's appeal. The notice shall also specify the
place, date, and time of that hearing and the Claimant's
opportunity to participate in the hearing. It may also include
any other information the Named Fiduciary believes may be
important or useful to the Claimant in connection with the
appeal.
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G. The decision to hold a hearing to consider the
Claimant's appeal of the denied claim shall be within the sole
discretion of the Named Fiduciary, whether or not the Claimant
requests such a hearing.
H. The Named Fiduciary's decision on review shall be
made in writing and provided to the Claimant within the specified
time periods in Paragraph F. This written decision on review
shall contain the following information:
1. the decision(s);
2. the reasons for the decision(s); and
3. specific references to the plan provisions of
the Agreement on which the decision(s) is/are based.
All of this information shall be written
in a manner calculated to be understood
by the Claimant.
6. NATURE OF EMPLOYER'S OBLIGATION. The
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Corporation's obligations under this Agreement shall be an
unfunded and unsecured promise to pay. The Corporation shall not
be obligated under any circumstances to fund its financial
obligations under this Agreement. Any assets which the
Corporation may acquire to help cover its financial liabilities
are and remain general assets of the Corporation subject to the
claims of its creditors. Neither the Corporation nor the plan
created by this Agreement gives the Employee any beneficial
ownership interest in any asset of the Corporation. All rights
of ownership in any such assets are and remain in the
Corporation.
7. EMPLOYMENT RIGHTS.
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a. This Agreement shall not be deemed to create
a contract of employment between the Corporation and the Employee
and shall create no right in the Employee to continue in the
Corporation's employ for any specific period of time, or to
create any other rights in the Employee or obligations on the
part of the Corporation, except as are set forth in this
Agreement. Nor shall this Agreement restrict the right of the
Corporation to terminate the Employee for cause, or restrict the
right of the Employee to terminate his employment.
b. "Cause" as defined in this Agreement shall
mean:
1. incompetence
2. insubordination or disloyalty
3. conviction or a plea of nolo contendre
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in a felony case
4. intoxication
5. drug addiction
8. EMPLOYEE RIGHT TO ASSETS.
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a. The rights of the Employee, any designated
recipient of the Employee, or any other person claiming through
the Employee under this Agreement, shall be solely those of an
unsecured general creditor of the Corporation. The Employee, the
designated recipient of the Employee, or any other person
claiming through the Employee, shall have the right to receive
those payments specified under this Agreement only from the
Corporation, and has no right to look to any specific or special
property separate from the Corporation to satisfy a claim for
benefit payments.
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b. The Employee agrees that he, his designated
recipient, or any other person claiming through him shall have
not rights or beneficial ownership interest whatsoever in any
general asset that the Corporation may acquire or use to help
support its financial obligations under this Agreement. Any such
general asset used or acquired by the Corporation in connection
with the liabilities it has assumed under this Agreement, shall
not be deemed to be held under any trust for the benefit of the
Employee or his designated recipients. Nor shall any such
general asset be considered security for the performance of the
obligations of the Corporation. Any such asset shall remain a
general, unpledged, and unrestricted asset of the Corporation.
c. The Employee also understands and agrees that
his participation in the acquisition of any such general asset
for the Corporation shall not constitute a representation to the
Employee, his designated recipient, or any person claiming
through the Employee that any of them has a special or beneficial
interest in such general asset.
9. INDEPENDENCE OF BENEFITS. The benefits payable
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under this Agreement shall be independent of, and in addition to,
any other benefits or compensation, whether by salary, or bonus
or otherwise, payable under any other employment agreements that
now exist or may hereafter exist from time to time between the
Corporation and the Employee. This Agreement between the
Corporation and the Employee does not involve a reduction in
salary or foregoing of an increase in future salary by the
Employee. Nor does the Agreement in any way affect or reduce the
existing and future compensation and other benefits of the
Employee except
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possibly as to the unqualified salary continuation plan hereby
amended.
10. ACCELERATION OF PAYMENTS. The Corporation
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reserves the right to accelerate the payment of any benefits
payable under this Agreement without the consent of the Employee,
his estate, his designated recipients, or any other person
claiming through the Employee.
11. LEAVE OF ABSENCE. The Corporation may, in its
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sole discretion, permit the Employee to take a leave of absence
for a period not to exceed one year. During such leave, the
Employee will still be considered to be in the continuous
employment of the Corporation for purposes of this Agreement.
12. ASSIGNABILITY. Except insofar as this provision
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may be contrary to applicable law, no sale, transfer, alienation,
assignment, pledge, collateralization, or attachment of any
benefits under this Agreement shall be valid or recognized by the
Corporation.
13. AMENDMENT. During the lifetime of the employee,
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this Agreement may be amended or revoked at any time, in whole or
in part, by the mutual written agreement of the parties.
Employee and Corporation further agree that this Agreement may be
amended as needed from time to time to comply with the
requirements or mandates of the Internal Revenue Code, ERISA
and/or any other law or regulation directly impacting upon
Employee and Corporation and their relationship arising out of
the terms and conditions of this Agreement.
14. LAW GOVERNING. This Agreement shall be governed
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by the laws of the state of West Virginia. This Agreement is solely
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between the Corporation and the Employee. Further, the
Employee, his designated recipients or other persons claiming
through the Employee shall only have recourse against the
Corporation for enforcement of the Agreement. However, it shall
be binding upon the designated recipients, beneficiaries, hairs,
executors and administrators of the Employee and upon the
successors and assigns of the Corporation.
VALLEY WELDING SUPPLY COMPANY,
a corporation
(CORPORATE SEAL) By
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Its President and CEO
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Xxxx Xxxxxxxx
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SCHEDULE A
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It is agreed this 5th day of October, 1992, that the
Corporation shall make payment at death to the designated
recipient(s) as follows: $1,000 per month, beginning within
thirty days of death, continuously for a period of eighty-four
(84) months.
VALLEY WELDING SUPPLY COMPANY,
a corporation
By
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Its President and CEO
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Xxxx Xxxxxxxx
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SCHEDULE B
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DESIGNATION OF SALARY CONTINUATION AND DEATH BENEFIT RECIPIENT
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I, XXXX XXXXXXXX, request the Corporation (xxxx/change)
its records to reflect XXXXXXXX X. XXXXXXXX as the designated
recipient(s) of the Salary Continuation Benefit payable under
Provision 4, and the Death Benefit payable under Provision 2 of
the salary continuation Agreement dated the 5th day of October,
1992, and to make payment of the Salary Continuation Benefit and
the Death Benefit to the above designated recipient(s) as
provided under the terms of the Agreement. You are instructed to
retain the above designation until such time as you receive a new
"Designation of Salary Continuation and Death Benefit Recipient"
from me which makes a change.
10/5/92
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(Date) Xxxxxxxx X. Xxxxxxxx
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SCHEDULE C
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It is agreed this 5th day of October, 1992, that upon
retirement the Corporation shall make monthly payments of $1,000
to the Employee for a period of eighty-four (84) months.
Employee shall retire as of the first day of the month
next preceding his sixty-fifth (65th) birthday or coincident
therewith. However, Corporation and Employee, by mutual
agreement, shall have the right to elect to extend Employee's
retirement date from year to year thereafter. Such election must
be made in writing by Corporation and Employee no later than the
20th day of December of the calendar year next preceding said
retirement date and each succeeding applicable anniversary date
thereof during any such yearly extension periods.
VALLEY WELDING SUPPLY COMPANY,
a corporation
By
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Its President and CEO
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Xxxxxxxx X. Xxxxx
