Exhibit 10.2
RESTATED EXECUTIVE RETIREMENT AGREEMENT
This Restated Executive Retirement Agreement (this "Restated Agreement") is
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made this 18th day of December 1999, by and between PS Group, Inc., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. (the
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"Executive"), with reference to the following facts:
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A. The Executive has served as Chairman of the Board of the Company since
1991, and as Chief Executive Officer of the Company since October, 1994.
B. The Executive is not a participant in the Retirement Plan for Corporate
Officers of PS Group, Inc. and Participating Subsidiaries.
C. The Company and the Executive are parties to an Executive Retirement
Agreement dated March 12, 1997 (the "Original Agreement") that was entered into
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in order to compensate the Executive for his services to the Company by
augmenting his accrued unfunded retirement benefit and to clarify terms and
conditions under which such retirement benefit would be accrued and paid.
D. The Original Agreement was amended and restated effective March 23, 1998
in order to provide for an increase in the amount of the unfunded retirement
benefit to be credited to the Executive's Account (as hereinafter defined) for
calendar year 1998 from $50,000 to $100,000.
E. The Original Agreement was further amended and restated effective March
25, 1999 (as so amended and restated, the "Amended Agreement") in order to
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provide for an increase in the amount of the unfunded retirement benefit to be
credited to the Executive's Account for calendar year 1999 and subsequent years
from $50,000 to $100,000.
F. This Agreement restates the Amended Agreement to provide that the
benefits payable to Executive on the "Payment Trigger Date" (as hereinafter
defined) shall be made in a lump sum and to make appropriate conforming changes.
This Agreement also clarifies certain provisions of the Amended Agreement to
confirm and reiterate the agreement of the parties, dating from the Original
Agreement, with respect to (i) the continuing accrual of interest on the Account
between the Termination Date (as hereinafter defined) and the Payment Trigger
Date and (ii) the Company's obligation to pay the benefits to the Executive's
designated beneficiary, or to other specified persons in
the absence of a designated beneficiary, in the event of the Executive's death
before the Payment Trigger Date.
NOW, THEREFORE, the Company and the Executive hereby agree as follows:
1. Definitions.
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For purposes of this Agreement, the following terms are defined as follows:
1.1 "Account" means the account maintained pursuant to Section 2 of this
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Agreement.
1.2 "Beneficiary" means the person or persons designated or determined
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pursuant to Section 3.2.
1.3 "Board" means the Board of Directors of the Company, without the
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participation of the Executive.
1.4 "Payment Trigger Date" means the later of June 30, 2001, or the
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Termination Date.
1.5 "Previously Accrued Amounts" means the unfunded retirement benefit and
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interest thereon which accrued on or before December 31, 1996 pursuant to the
previous agreement between the Company and the Executive, and which consists of:
(a) Fifty Thousand Dollars ($50,000.00) per year accrued on December 31
of each calendar year from 1991 through 1996, inclusive;
(b) Interest accrued during each calendar year from 1992 through 1996,
inclusive, at the rate paid on one-year U.S. Treasury Bills as of January 1 of
such calendar year.
1.6 "Termination Date" means the date on which the Executive ceases to
perform services for any reason (including, but not limited to, the Executive's
death, total and permanent disability, or retirement) for the Company either in
the capacity of Chairman of the Board of Directors or in the capacity of Chief
Executive Officer.
2. The Account.
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2.1 The Company shall establish and maintain the Account, which shall be
credited with the following amounts:
(a) As of December 31, 1996, the Previously Accrued Amounts;
(b) As of December 31, 1996, the sum of Fifty Thousand Dollars
($50,000.00);
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(c) As of the last day of each calendar month in each calendar year
beginning with calendar year 1997, the sum of Eight Thousand Three Hundred
Thirty-Three and 33/100 Dollars ($8.333.33), but subject to Section 2.2 if any
calendar month includes the Termination Date; and
(d) Interest during each calendar year beginning with 1997
compounded daily at the rate paid on one-year U.S. Treasury Bills as of January
1 of such calendar year; provided, however, that such interest shall cease to
accrue on the Payment Trigger Date.
2.2 For the calendar month which includes the Termination Date, the full
amount specified in Section 2.1(c) with respect to such month shall be credited
to the Account on the Termination Date rather than on the last day of such
month, and no amounts shall be credited to the Account under Section 2.1(c) with
respect to any calendar month after the calendar month which includes the
Termination Date.
2.3 In accordance with the provisions of Section 7, the Account shall be
for bookkeeping purposes only, and the Company shall not be required to acquire
or maintain any investments corresponding to the Account balance.
3. Payment of Benefits.
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3.1 Payment of benefits under this Agreement shall be made as soon as
administratively practicable following the Payment Trigger Date in the form of a
lump sum in an amount equal to the balance in the Account as of the Payment
Trigger Date.
3.2 If the Executive dies before the Payment Trigger Date, the payment
provided for in Section 3.1 shall be made to such one or more persons (a
"Beneficiary") as the Executive has designated in writing to the Board prior to
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his death. The Executive may change the designation of his Beneficiaries at any
time by giving written notice of such change to the Board. The Executive may
designate one or more contingent Beneficiaries to receive benefits in the event
of the death of the primary Beneficiaries. If, upon the death of the Executive
prior to the time the Company makes the payment provided for in Section 3.1, no
designation of a Beneficiary is effective, or no designated Beneficiary
survives, such payment shall be made to the following persons in the following
order of priority: (a) the Executive's surviving spouse; (b) the Participant's
surviving children, and any descendants of a deceased child by right of
representation; and (c) the executor or administrator of the estate of the
Executive.
4. Confidential Information; Forfeiture of Benefits.
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Notwithstanding any other provision of this Agreement to the contrary,
benefits under this Agreement are paid with the understanding that the Executive
does not engage or become involved in any occupation or any activity or
relationship which involves the
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use or disclosure to others of information or practices acquired or learned
while employed by the Company or any of its subsidiaries or parent and which any
of them reasonably regards as confidential or their property or trade secret, or
in any other activity detrimental to any of them. If the Company, after a
thorough investigation, finds that the Executive has violated the provisions of
this Section 4, benefits payable hereunder shall be forfeited. Notwithstanding
any other provision of this Agreement to the contrary, no benefits will be
payable under this Agreement if the Executive confesses to, or is convicted of,
an act of fraud, theft or dishonesty amounting to a felony and arising in the
course of or in connection with his employment with the Company or any of its
subsidiaries or parent, and, in such case, all such benefits will be forfeited.
5. Receipt of Releases.
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Any payment of benefits under this Agreement shall, to the full extent
thereof, be in full satisfaction of all claims against the Company and its
subsidiaries and parent, and the Company may require the recipient thereof, as a
condition precedent to such payment, to execute a receipt and release to such
effect.
6. ERISA; Administration.
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6.1 This Agreement constitutes a pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), which is unfunded and maintained for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees. This Plan constitutes the "summary plan description" required under
ERISA, as well as the governing document of the Plan. The "administrator" of the
Plan, within the meaning of Section 3(16) of ERISA, and the "named fiduciary"
thereof, within the meaning of Section 402 of ERISA, is the Board. Attached
hereto as Exhibit "A" is a statement of the Executive's rights under ERISA.
Attached hereto as Exhibit "B" is a statement of the claims procedure under this
Agreement and ERISA.
6.2 The Board, acting as the "administrator" under ERISA, shall have the
full power, authority, and discretion to construe and interpret the terms and
provisions of this Agreement, and to compute and certify to the amount and form
of benefits payable under this Agreement. Any interpretation or construction of
this Agreement by the Board shall be final and binding on all parties,
including, but not limited to, the Executive and any Beneficiary.
7. Unsecured General Creditor.
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The Executive and his Beneficiaries, heirs, successors, and assigns shall
have no legal or equitable rights, claims, or interests in any specific property
or assets of the Company. No assets of the Company shall be held under any
trust, or held in any way as collateral security for the fulfilling of the
obligations of the Company under this
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Agreement. This Agreement shall not cause any of the Company's assets to be
pledged or restricted. The obligations of the Company under the Agreement
pending payment under Section 3 shall be merely that of an unfunded and
unsecured promise of the Company to pay money in the future, and the rights of
the Executive and his Beneficiaries shall be no greater than those of unsecured
general creditors. The Company may, but need not, acquire investments
corresponding to the Account hereunder, and it is not under any obligation to
maintain any investment it may make. Any such investments, if made, shall be in
the name of the Company, and shall be its sole property in which neither the
Executive nor any Beneficiary shall have any interest.
8. Restriction Against Assignment.
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The Company shall pay all amounts payable hereunder only to the person
or persons designated by this Agreement and not to or for any other person. No
part of the Account shall be liable for the debts, contracts, or engagements of
the Executive, any Beneficiary, or successors in interest, nor shall the Account
be subject to execution by levy, attachment, or garnishment or by any other
legal or equitable proceeding, nor shall any such person have any right to
alienate, anticipate, transfer, commute, pledge, encumber, or assign any
benefits or payments hereunder in any manner whatsoever. Any purported
alienation, anticipation, transfer, commutation, pledge, encumbrance, or
assignment shall be void and of no effect. If the Executive, any Beneficiary, or
successor in interest is adjudicated bankrupt, and such person's rights to
distribution or payment under this Agreement are subject to involuntary transfer
or assignment in any such proceeding, the Board may in its discretion cancel
such distribution or payment (or any part thereof) to or for the benefit of the
Executive, such Beneficiary or successor in interest.
9. Withholding.
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There shall be deducted from the payment to the Executive or a Beneficiary
made under Section 3 all taxes which are required to be withheld by the Company
from such payment. If any taxes, including employment taxes with respect to the
Account, are required to be withheld prior to the time of payment, the Company
may withhold such amounts from other compensation paid to the Executive.
10. Amendment, Modification, Suspension or Termination.
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The Board may amend, modify, suspend or terminate this Agreement in whole
or in part, except that no amendment, modification, suspension or termination
shall have any retroactive effect to reduce any amounts allocated to the Account
or the Company's payment obligation under Section 3.
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11. Governing Law.
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This Agreement shall be construed, governed and administered in
accordance with the laws of the State of California, to the extent such laws are
not preempted by ERISA.
12. Payments on Behalf of Persons Under Incapacity.
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In the event that the amount payable under Section 3 is payable to a person
who, in the sole judgment of the Board, is considered by reason of physical or
mental condition to be unable to give a valid receipt or release therefor, the
Board may direct that such payment be made to any person found by the Board, in
its sole judgment, to have assumed the care of such person. Any payment made
pursuant to such determination shall constitute a full release and discharge of
the Board and the Company.
13. No Employment Rights.
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This Agreement shall not confer upon the Executive any right to be employed
by or serve as a director of the Company or any of its subsidiaries or parent,
or any other right not expressly provided hereunder.
14. Headings Not Part of Agreement.
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Headings and subheadings in this Agreement are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
15. Counterparts.
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This Agreement may be executed in two counterparts, each of which shall
constitute an original document but both of which together shall constitute a
single instrument.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
The "Company"
PS GROUP, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President-Finance
The "Executive"
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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EXHIBIT A
Information Provided Under ERISA. This Executive Retirement Agreement
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constitutes an unfunded Plan of deferred compensation, maintained on a calendar
year basis. The Company is the Plan sponsor, Plan Administrator, and agent for
service of legal process. The Company bears the costs of all benefits under the
Plan.
The Company's address, telephone number and employer identification number
are as follows:
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Employer Identification No.: ▇▇-▇▇▇▇▇▇▇
The Plan number assigned to the Plan is 003.
Statement of ERISA Rights. A Participant in this Plan is entitled to
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certain rights and protections under a federal law known as "ERISA." ERISA
provides that all Plan Participants shall be entitled to examine, without
charge, at the Plan Administrator's office, all Plan documents and the Plan's
annual report. Copies of these documents and other Plan information may also be
obtained upon written request to the Plan Administrator. A reasonable charge may
be made for copies.
In addition to creating rights for plan participants, ERISA imposes duties
upon the people who are responsible for the operation of this Plan. The people
who operate this Plan, called "fiduciaries" of the Plan, have a duty to do so
prudently and in your interest. No one, including your employer or any other
person, may fire you or otherwise discriminate against you in any way to prevent
you from obtaining benefits or exercising your rights under ERISA. If your claim
for benefits is denied in whole or in part, you must receive a written
explanation of the reason for this denial. You have the right to have the Plan
Administrator review and reconsider your claim, as described in Exhibit B to the
letter to which this Exhibit is attached.
Under ERISA, there are steps you can take to enforce the above rights. For
instance, if you request materials from the Plan and do not receive them within
30 days, you may file a claim in Federal court. In such a case, the court may
require the Plan Administrator to provide the materials and pay you up to $100 a
day until you receive the materials, unless the materials were not sent because
of reasons beyond the control of the Plan Administrator. If you have a claim for
benefits which is denied or ignored, in whole or in part, you may file a claim
in Federal or state court. If you are discriminated against
for asserting your rights, you may seek assistance from the U.S. Department of
Labor, or you may file a lawsuit in Federal court. The court will decide who
should pay the costs and legal fees of lawsuit. If you are successful, the court
may order the person you have sued to pay these costs and fees. If you lose, the
court may order you to pay these costs and fees, for example, if it finds your
claim is frivolous.
If you have any questions about your Plan, you should contact the Plan
Administrator. If you have any questions about this statement or about your
rights under ERISA, you should contact the nearest Area Office of the U.S. Labor
Management Services Administration, Department of Labor.
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EXHIBIT B
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If you believe you are entitled to a benefit under this Agreement, you may
make a claim for such benefit by filing with the Company a written statement
setting forth the amount and type of payment so claimed. The statement shall
also set forth the facts supporting the claim. The claim may be filed by mailing
or delivering it to the Board of Directors of the Company.
Within sixty (60) calendar days after receipt of such a claim, the Board
shall notify you in writing of its action on such claim and if such claim is not
allowed in full, shall state the following in a manner calculated to be
understood by you:
(a) The specific reason or reasons for the denial;
(b) Specific reference to pertinent provisions of this Agreement on which
the denial is based;
(c) A description of any additional material or information necessary for
you to be entitled to the benefits that have been denied and an explanation of
why such material or information is necessary; and
(d) An explanation of this Agreement's claim review procedure.
If you disagree with the action taken by the Board, you or your duly
authorized representative may apply to the Board for a review of such action.
Such application shall be made within one hundred twenty (120) calendar days
after receipt by you of the notice of the Board's action on your claim. The
application for review shall be filed in the same manner as the claim for
benefits. In connection with such review, you may inspect any documents or
records pertinent to the matter and may submit issues and comments in writing to
the Board. A decision by the Board shall be communicated to you within sixty
(60) calendar days after receipt of the application. 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 you, and specific references to the
pertinent provisions of this Agreement on which the decision is based.