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EXHIBIT 10(B)
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XXXXXXX X. XXXXXXXXX SUPPLEMENTAL RETIREMENT AGREEMENT
DATED AS OF JUNE 14, 1999
This XXXXXXX X. XXXXXXXXX SUPPLEMENTAL RETIREMENT AGREEMENT (the "SERP
Agreement"), dated as of June 14, 1999, is made and entered into by and between
M.A. XXXXX COMPANY, a Delaware corporation (the "Company") and XXXXXXX X.
XXXXXXXXX (the "Participant").
1. PURPOSE. The purpose of the Xxxxxxx X. Xxxxxxxxx Supplemental
Retirement Agreement is to provide the Participant, President and Chief
Executive Officer of the Company, the ability to retire from employment
with the Company with a source of supplemental retirement income.
2. ELIGIBILITY TO PARTICIPATE. Only Xxxxxxx X. Xxxxxxxxx shall be eligible
to participate in this SERP Agreement.
3. BENEFIT COMMENCEMENT. The Benefit payable under this SERP Agreement
shall commence following (i) retirement of the Participant on or after
December 31, 2005, (ii) termination of the Participant's employment
with the Company pursuant to Section 7.4.1 of the Employment Agreement
dated as of June 14, 1999 between the Participant and the Company (the
"Employment Agreement"), (iii) payment by the Company to the
Participant of damages for a material breach by the Company of the
Change-in-Control Agreement referenced in Section 9.1 of the Employment
Agreement (the "Change-in-Control Agreement"), (iv) termination of the
Participant's employment pursuant to Section 7.2 of the Employment
Agreement or (v) the Participant's death after attaining age 55 but
before benefits commence hereunder. In no event will benefits commence
prior to the first day of the month following the end of the
Continuation Period (as defined in the Employment Agreement) if any.
The Benefit payable under this SERP Agreement shall be payable to the
Participant and, if applicable, to his spouse or beneficiary after his
death.
4. AMOUNT OF BENEFIT. The Company will provide the Participant with annual
payments of $526,000 each for the life of the Participant commencing on
the later of (i) the date on which the Participant retires from
employment with the Company on or after December 31, 2005 or (ii) the
first day of the month following the end of the Continuation Period (as
defined in the Employment Agreement), if any. If the Participant's
employment with the Company is terminated pursuant to Section 7.4.1 of
the Employment Agreement before December 31, 2005, or if the Company
pays to the Participant damages for a material breach of the
Change-in-Control Agreement, or if the Participant's employment is
terminated pursuant to Section 7.2 of the Employment Agreement, the
Company will provide the Participant with annual payments for
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the life of the Participant commencing on the later of (i) the date on
which his employment is terminated or (ii) the first day of the month
following the end of the Continuation Period (as defined in Employment
Agreement), if any, in an amount equal to $526,000 multiplied by a
fraction (not greater than one), the numerator of which is the sum of
17 years and 9 months plus the Participant's years and complete months
of service with the Company (treating June of 1999 as a complete month
of service with the Company, and also treating any Continuation Period
under the Employment Agreement as service with the Company) and the
denominator of which is 20 years.
5. FORM OF BENEFIT PAYMENT. Benefits shall be paid in the form of a life
annuity, or any other form of payment approved by the Compensation and
Organization Committee of the Company's Board of Directors (the
"Compensation Committee") available as a benefit under the Company's
Salaried Employees Retirement Income Plan ("SERIP"), subject to the
same actuarial adjustments as in SERIP other than those related to
early commencement of payments. Instead of the annual retirement
benefit otherwise provided under this Plan, the Participant may elect,
not later than one year before his retirement or other voluntary
termination of employment or at any time before his termination of
employment pursuant to Section 7.4.1 of the Employment Agreement, to
receive benefits in the form of a lump sum payment, subject to the
approval of the Compensation Committee. The lump sum payment shall be
equal to the "present value" amount of the Participant's life annuity
benefit under the Plan, discounted on the same basis as is used for
lump sum calculations under SERIP. The lump sum benefit would be
payable within 30 days following the benefit commencement date set
forth in 3 above. There is no spousal consent required for any form of
benefit payable under this agreement.
6. PRE-RETIREMENT SPOUSE DEATH BENEFIT. In the event the Participant dies
after attaining age 55 but before benefits commence, payments will be
made to the Participant's spouse in the form of a pre-retirement
survivor benefit. This pre-retirement survivor benefit would commence
on January 1, 2006 and would be payable for the life of the spouse
only, with no rights of survivorship. This benefit will be calculated
as if the Participant had left the employ of the Company prior to
December 31, 2005. The pre-retirement survivor benefit shall be the
same as a pre-retirement survivor benefit under SERIP. This benefit
would be actuarially adjusted to the 50% Joint and Survivor option
under SERIP. The Participant's spouse may, prior to the Participant's
death, file with the Company a written election that, if the
Participant's death occurs before commencement of benefits hereunder
and before January 1, 2006 and the Participant is survived by such
spouse, payments to the spouse would commence before January 1, 2006 at
such time as is designated by such spouse, in which case payments shall
commence at such earlier time as is designated by the spouse, the
amount of such benefit to be reduced from the amount determined
pursuant to the preceding provisions of this paragraph in the same
manner that pre-retirement spouse benefits are reduced under Section
3.9 of SERIP on account of commencement before normal retirement age
under SERIP. To be effective, an election pursuant to the preceding
sentence must be filed with the Company
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either within the thirty-day period beginning on the date of the
execution of this Agreement, or at least twelve months before the
Participant's death. The Participant's spouse may file a revised
election. The latest effective election shall control.
7. SOURCE OF PAYMENT AND BENEFIT. The Benefit provided under this SERP
Agreement shall be paid by the Company from its general assets at the
time and in the manner provided herein. The Benefit shall not be
subject to assignment, pledge, alienation or anticipation by the
Participant, his spouse or his beneficiary. The obligations of the
Company hereunder constitute merely the promise of the Company to make
the payments provided for in this SERP Agreement. Neither the
Participant, his spouse, his beneficiary nor the estate of any of them
shall have, by reason of this SERP Agreement, any right, title, or
interest of any kind in or to any property of the Company. To the
extent the Participant has a right to receive payments from the Company
under this SERP Agreement, such right shall be no greater than the
right of any unsecured general creditor of the Company.
8. CONDITIONS OF PAYMENTS OF BENEFIT. Notwithstanding any provision of
this SERP Agreement to the contrary, the right of the Participant, his
spouse or his beneficiary to receive the Benefit shall cease (a) for
acts which constitute fraud, embezzlement, disclosure of confidential
information or dishonesty, or (b) upon Participant's voluntary
termination of employment with the Company other than by reason of
Section 7.4.1 or Section 7.2 of the Employment Agreement.
9. ADMINISTRATION. The Compensation Committee shall administer this SERP
Agreement, resolve any ambiguities or inconsistencies, and decide all
questions arising in its administration, interpretation or application.
Any decision of the Compensation Committee shall be conclusive and
binding upon the Participant or other persons having or claiming an
interest in this SERP Agreement.
10. AMENDMENT AND TERMINATION. By mutual agreement between the Compensation
Committee and the Participant, this SERP Agreement may be amended at
any time prior to December 31, 2005, and/or terminated in its entirety
at any time prior to commencement of benefits. Notwithstanding the
foregoing provisions of this paragraph, this SERP Agreement may not be
amended or terminated with respect to a Benefit that became payable
prior to such amendment or termination except with the written consent
of the Participant, his spouse or other beneficiary receiving such
Benefit.
11. WITHHOLDING. The Company shall have the right to deduct from any
payment of a Benefit or any other form of compensation from the Company
any amount required to satisfy its obligation to withhold federal,
state and local taxes, including, if appropriate FICA/Medicare tax on
the value of the benefits hereunder as they accrue or are paid.
12. CONSTRUCTION. This SERP Agreement is intended to qualify as a plan
maintained for the benefit of a select group of management or highly
compensated
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employees within the meaning of the Employee Retirement Income Security
Act of 1974 and shall be construed in accordance with such intention.
13. RE-EMPLOYMENT. Upon re-employment with the Company, benefits are
suspended in accordance with the same provisions in the SERIP. Benefits
would be re-calculated under the terms of this SERP Agreement and
commence upon subsequent retirement.
14. EFFECTIVE DATE. This SERP Agreement shall be effective as of the date
of its execution.
EXECUTED on this 29th day of June, 1999.
/s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
M. A. XXXXX COMPANY
By: /s/ Xxxx X. Beach
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Name: Xxxx X. Beach
Title: Vice President, Human Resources
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