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EXHIBIT 10.69
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS AGREEMENT is made and entered into this 8th day of May, 1996 by
and between SpecTran Corporation ("SpecTran"), a Delaware corporation, and
Raymond E. Jaeger (hereinafter called "Jaeger").
PURPOSE AND INTENT
This agreement (the "Agreement") is designed to recognize Jaeger's
contribution to the Corporation(1) as both a founder of the Corporation and as
its President and Chief Executive Officer since inception and to encourage
Jaeger to remain in the Corporation's employ by providing supplemental
retirement benefits, keyed to a specified percentage of his compensation, so
that Jaeger's percentage of spendable retirement income will approximate the
percentage of spendable retirement income available to less compensated
employees who also participate in the Corporation's retirement plans. Due to
restrictions presently imposed by the Internal Revenue Code on benefits for
highly compensated employees, the percentage of spendable retirement income
Jaeger would receive under the Corporation's current benefit plans relative to
his current compensation would be less than that of employees at lower salary
levels. The benefits provided in this Agreement are designed to be entirely
supplemental to the Corporation's other retirement benefits payable to Jaeger;
if Jaeger receives the specified percentage of compensation through pension
plans and other benefits (as described below) provided by the Corporation, no
benefits will be paid out under this Agreement. While any benefits are paid
under this Agreement Jaeger will be available to consult for the Corporation.
Further, these benefits are subject to forfeiture if Jaeger is terminated for
Cause (as defined herein) or, as described below, competes with the Corporation.
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(1) Initial capitalized words may be defined below under the heading "Certain
Definitions".
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EXHIBIT 10.69
Jaeger is a founder of the Corporation, has been employed by the
Corporation since its inception in 1981, and served as President and Chief
Executive Officer of the Corporation and its subsidiaries from its inception
through December 31, 1995. The Board of Directors of SpecTran voted on May 8,
1996 to authorize the Corporation to enter into this Agreement with Jaeger.
CERTAIN DEFINITIONS(a) "Accrued Benefit" shall have the meaning set forth in
Section 2.01 of this Agreement.
(b) "Affiliate" shall mean any person or entity which controls, is controlled by
or is under common control with the Corporation. For the purpose of this
Agreement, control shall mean ownership of fifty percent (50%) or more of the
voting stock of any entity.
(c) "Benefit Computation Base" shall mean the average of Jaeger's annual
compensation (defined as base salary, bonus(2) and any salary reduction amounts
pursuant to Sections 401(k)
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(2) To the extent that the average annual bonus paid to Jaeger during the 36
month period in which the Benefit Computation Base is calculated is greater than
fifty percent (50%) of Jaeger's average base salary over such period, the excess
bonus payments shall be considered ineligible for the purpose of calculating the
Benefit Computation Base. For example, assume that Jaeger's base salary and
bonuses over the 36 month period are as shown in the following two examples:
1.
Base Salary Bonus
-----------------------------------------------------------------
Months 1-12 $200,000 $200,000
Months 13-24 $210,000 $100,000
Months 25-36 $220,000 $ 90,000
Average $210,000 $130,000
In this example, fifty percent (50%) of Jaeger's average annual base
salary over the 36 month period is $105,000. Accordingly, of Jaeger's average
annual bonus of $130,000 paid over that period, $25,000 will be deemed
ineligible for the purpose of calculating the Benefit Computation Base,
resulting in $105,000 of the average bonus being considered eligible.
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EXHIBIT 10.69
or 125 of the Code) paid during the thirty-six (36) consecutive calendar months
during Jaeger's period of employment by the Corporation in which such
compensation is the highest.(d) "Change in Control" shall have the meaning set
forth in Section 10.02 of this Agreement.(e) The "Corporation" shall mean
SpecTran, its successors and assigns, including but not limited to any
corporation, firm or person which is the survivor of a merger or consolidation
with SpecTran or which acquires substantially all of the assets of SpecTran, and
any of SpecTran's Affiliates.(f) "Normal Retirement Date" shall mean Jaeger's
sixty-fifth birthday.(g) "Offsetting Benefits" shall have the meaning set forth
in Section 2.03 of this Agreement.(h) "Supplemental Retirement Benefit" shall
have the meaning set forth in Section 2.01 of this Agreement.
ARTICLE ONE
1.01 EMPLOYMENT. The Corporation may employ Jaeger in such capacity as the
Corporation may from time to time determine. Notwithstanding anything contained
herein, this Agreement is not an agreement of employment, a guaranty of
continuing employment or of employment in any particular position and nothing
herein shall restrict the Corporation concerning the terms and conditions of
Jaeger's employment. The benefits provided by this Agreement are not part of any
salary reduction plan or an arrangement deferring a bonus or a salary increase.
Jaeger has no option to take any current payment or bonus in lieu of these
salary continuation benefits.
2.
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Base Salary Bonus
-----------------------------------------------------------------
Months 1-12 $200,000 $200,000
Months 13-24 $210,000 $ 10,000
Months 25-36 $220,000 $ 30,000
Average $210,000 $ 80,000
In this example, fifty percent (50%) percent of Jaeger's average
annual base salary over the 36 month period is $105,000. Jaeger's average annual
bonus over that period of $80,000 is less than the average annual base salary,
and accordingly the entire average annual bonus will be eligible in determining
the Benefit Computation Base.
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EXHIBIT 10.69
ARTICLE TWO
2.01 SUPPLEMENTAL RETIREMENT BENEFIT. Depending upon how many years Jaeger has
been continuously in the employ of the Corporation, Jaeger will be entitled to a
retirement benefit determined as of the effective date of his leaving the
Corporation's employment for whatever reason except Cause (as defined below),
including whether by (i) death, (ii) disability, (iii) termination of employment
or (iv) early retirement. The retirement benefit (also known as the "Accrued
Benefit") shall be an annual amount equal to Jaeger's Benefit Computation Base
multiplied by the Annual Percentage Amount (as determined pursuant to Section
2.02, below). Jaeger will receive a supplemental retirement benefit (the
"Supplemental Retirement Benefit") equal to (i) the amount of the Accrued
Benefit reduced by (ii) the sum of the benefits described in Subsections (1),
(2), (3) and (4) of Section 2.03, below (such benefits are referred to herein as
the "Offsetting Benefits"). The Supplemental Retirement Benefit, if any, to be
paid out under this Agreement, shall continue for fifteen (15) years, and be
paid in equal monthly installments commencing on the first day of the month
immediately following the later of Jaeger's actual retirement or the Normal
Retirement Date (unless payment is accelerated in accordance with Sections 10.01
and 10.02 below). No payment will be made under this Agreement if the Offsetting
Benefits are equal to or greater than the Accrued Benefit.
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EXHIBIT 10.69
2.02 ANNUAL PERCENTAGE AMOUNT.
(a) The Annual Percentage Amount shall be determined (subject to subsection
(b), below) by the number of years Jaeger has been continuously employed by the
Corporation as follows:
=========================================================================================
YEARS OF CONTINUOUS SERVICE ANNUAL PERCENTAGE AMOUNT
=========================================================================================
25 or more 65%
20 -24 60%
15-19 40%
less than 15 0% (No Supplemental Retirement Benefit)
=========================================================================================
(b) Notwithstanding the provisions of Subsection (a) of this Section 2.02,
in the event (a) Jaeger does not remain employed by the Corporation for any
reason during the twelve (12) month period following a Change in Control (as
defined in Section 10.01, below) or (b) an event described in Section 10.01
occurs and either such other corporation, firm or person (as described in
Section 10.01) does not agree that Jaeger shall continue in the employ of the
Corporation for any reason following such event or the Corporation's successor
does not assume its obligations hereunder, Jaeger will be deemed eligible to
receive a Supplemental Retirement Benefit under this Agreement if at the time of
the termination of his employment he will have completed at least five full
years of service to the Corporation. In this case, the Annual Percentage Amount
shall be determined by the number of years Jaeger has been continuously employed
by the Corporation as follows:
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EXHIBIT 10.69
=========================================================================================
YEARS OF SERVICE ANNUAL PERCENTAGE AMOUNT
=========================================================================================
25 or more 65%
20 -24 60%
15-19 40%
14 36%
13 32%
12 28%
11 24%
10 20%
9 16%
8 12%
7 8%
6 4%
less than 6 0% (No Supplemental Retirement Benefit)
=========================================================================================
c) Anything else to the contrary in this Agreement notwithstanding, in the
event of either (a) Jaeger does not remain employed by the Corporation for any
reason during the twelve month period following a Change in Control or (b) an
event described in Section 10.01 occurs and either such other corporation, firm
or person (as described in Section 10.01) does not agree that Jaeger shall
continue in the employ of the Corporation for any reason following such event or
the Corporation's successor does not assume its obligations hereunder, and (c)
in either case, the payment of the Supplementary Retirement Benefit hereunder,
is considered a Parachute Payment and when combined with all other payments
considered to be Parachute Payments from the Corporation to Jaeger due to the
events described in (a) and (b) above, result in an Excess Parachute Payment, as
defined by Section 280G of the Internal Revenue Code of 1986, as amended, then
the amount of the Supplementary Retirement Benefit shall be reduced so that the
total Parachute Payments received by Jaeger from the Corporation do not
constitute an Excess Parachute Payment; provided, however, that this Section
2.02(c) shall not apply if the total Parachute Payments from the Corporation to
Jaeger due to the events described in (a) and (b) above exceed one hundred
twenty percent (120%) of the amount of all Parachute Payments not including any
amount that would be considered an Excess Parachute
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EXHIBIT 10.69
Payment.
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EXHIBIT 10.69
2.03 OFFSETTING BENEFITS.
(a) The following are the Offsetting Benefits, which reduce the Accrued
Benefit for the purpose of calculating the Supplemental Retirement Benefit:
1. Fifty percent (50%) of Jaeger's (actual or projected) annual primary
social security retirement benefit projected as of Jaeger's social security
normal retirement age based on his Benefit Computation Base in effect on
the date of termination of Jaeger's employment with the Corporation;
2. The annual amount of benefits payable to Jaeger (or his beneficiaries)
at the Normal Retirement Date calculated on a single life annuity basis
from any qualified defined benefit pension plan maintained and funded by
the Corporation as of the date of this Agreement, or their successors, as
such plan or plans may be amended or modified from time to time;
3. The annual amount of benefits payable at the Normal Retirement Date on a
single life annuity basis attributable to the portion of the account
balances of Jaeger arising from employer contributions (but excluding the
portion of such balances arising from employee salary reduction and
elective contributions) at the date of determination from the Corporation's
401(k) and other defined contribution retirement plans maintained by the
Corporation as of the date of this Agreement, or their successors, as such
plan or plans may be modified from time to time;
4. The annual amount of benefits payable to Jaeger at the Normal Retirement
Date calculated on a single life annuity basis from any other non-qualified
supplemental retirement plan maintained and funded by the Corporation as of
the date of this Agreement, or their successors, as such plan or plans may
be amended or modified from time to time.
(b) The Corporation's obligation to pay the Offsetting Benefits shall not be
affected by the termination of this Agreement and the Supplemental Retirement
Benefit payable hereunder for any reason whatsoever.
(c) All calculations of the Supplemental Retirement Agreement payable to Jaeger
under this Agreement will be made assuming that Jaeger participates in the
Offsetting Benefits to the full extent permitted by law and the terms of those
plans.
(d) If Jaeger terminates his employment prior to his Normal Retirement Date, in
calculating his Accrued Benefit, (i) the offset of primary social security
retirement benefit shall be calculated on the basis of the amount projected to
be payable at Jaeger's social security normal retirement age assuming continued
earnings by Jaeger at the rate in effect at termination of employment until
Jaeger's social security normal retirement age; (ii) the offset for any
qualified defined benefit plan shall be calculated on the basis of Jaeger's
accrued benefit in said plan upon termination of employment projected to be
payable at Jaeger's Normal Retirement Date; (iii) the offset for any benefits
arising from employer contributions attributable to the account balances of
Jaeger arising from the Corporation's 401(k) plan or any other defined
contribution retirement plan shall also be calculated on the basis of Jaeger's
accrued benefit in such plan(s) upon termination of employment projected to be
payable at Jaeger's Normal Retirement Date; and (iv) the offset for any
non-qualified supplemental
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EXHIBIT 10.69
retirement plan shall be calculated on the basis of Jaeger's accrued benefit in
said plan upon termination of employment projected to be payable at Jaeger's
Normal Retirement Date .
2.04 OPTIONAL FORMS OF PAYMENT. In lieu of the fifteen (15) year certain
payments provided in Section 2.01 above, or whenever a Supplemental Retirement
Benefit is payable under Section 4.01 or 5.01 of this Agreement, Jaeger may
elect by written notice to the Corporation in the calendar year prior to the
calendar year in which payments are to begin, an optional form of payment which
shall be the actual equivalent (factors defined in SpecTran's qualified defined
benefit pension plan) of the said fifteen (15) year certain payments. The
optional form of payment shall be any optional form of payment which is provided
to Jaeger under the terms of SpecTran's qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding, Jaeger
shall be entitled to one hundred percent (100%) of any benefit payable under
this Agreement under any one or more of Sections 2.01, 3.01, 4.01, 5.01, 10.01
or 10.02 at the date on which his entitlement to such benefit shall be
determined commencing with his original date of hire by the Corporation,
provided that such benefits are subject to forfeiture as described in Sections
5.03 and 5.04, below.
ARTICLE THREE
3.01 DEATH OF JAEGER.
(a) If Jaeger dies while employed by the Corporation but prior to the
commencement of the payment of the Supplemental Retirement Benefit under
Section 2.01, 4.01 or 5.01, SpecTran will pay to the designated
beneficiaries of Jaeger, a total annual amount equal to the Supplemental
Benefit earned by Jaeger as of the date of death, payable over a period of
fifteen (15) years certain commencing on the first day of the month next
following the delivery to the Corporation of a death certificate and on a
monthly basis thereafter.
(b) If Jaeger dies following the commencement of the payment of the
Supplemental Retirement Benefit under Section 2.01, 4.01 or 5.01, such
payments shall continue to the designated beneficiaries of Jaeger until all
of the Supplemental Retirement Benefit has been paid.
c) If Jaeger dies following the termination of his employment with the
Corporation and prior to the commencement of the payment of the
Supplemental Retirement Benefit under Section 2.01, 4.01 or 5.01, SpecTran
shall pay to Jaeger's named beneficiaries an annual benefit which shall be
Jaeger's Supplemental Retirement Benefit as of the date of the termination
of his employment. Such benefits shall be payable monthly, commencing on
the first day of the month following the Normal Retirement Date, or any
date prior to the Normal Retirement Date approved by the Corporation, and
continuing for fifteen (15) years; provided, however, that Jaeger's
designated beneficiaries shall be entitled to accelerated payments of such
benefits if and to the same extent Jaeger would have been entitled to an
accelerated payment of the Supplemental Retirement Benefit had he survived.
3.02 BENEFICIARIES. Jaeger shall designate, in writing to the Corporation, on
the form titled "Designation of Beneficiary" attached hereto as Schedule A, one
or more beneficiaries. Jaeger
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EXHIBIT 10.69
from time to time may change his designated beneficiaries by delivering to the
Corporation a dated, revised Designation of Beneficiary form, revoking the prior
designation. If no beneficiary is so named or if no named beneficiary is living
at the time a payment is due, benefit payments shall be made, when due, to
Jaeger's estate. If payments of benefits to a beneficiary commences and such
beneficiary dies before all amounts to which such beneficiary is entitled have
been paid, the remaining benefits shall be paid to the successive beneficiary or
beneficiaries, if any, designated by Jaeger, or if none, to the beneficiary's
estate.
ARTICLE FOUR
4.01 DISABILITY PRIOR TO RETIREMENT. In the event Jaeger shall become disabled,
mentally or physically, which disability prevents him from performing the
material aspects of his duties, the Corporation will pay no disability benefits
hereunder. Disability benefits (if any) will be paid to Jaeger through such
insurance programs as may be sponsored by the Corporation. Upon the later of
termination of such other disability benefits (if any), or Jaeger's attainment
of the Normal Retirement Date, Jaeger shall commence receiving payment of his
Accrued Benefit determined as of the date of the disability. The Supplemental
Retirement Benefit shall be paid in equal monthly installments, for fifteen (15)
years certain commencing on the first day of the month following the later of
the termination of such benefits or the Normal Retirement Date, or in the manner
provided in Section 2.04.
4.02 RE-EMPLOYMENT FOLLOWING DISABILITY. In the event Jaeger returns to work
with the Corporation after terminating employment because of disability, this
Agreement shall continue in full force and effect as though such disability had
not occurred. Under such circumstances, Jaeger will receive credit towards
determining the Annual Percentage Amount for service prior to terminating his
employment because of disability and for service after resuming employment with
the Corporation, but will not receive credit for the interim prior during which
he was not employed by the Corporation.
ARTICLE FIVE
5.01 EARLY RETIREMENT, TERMINATION OF SERVICE OR DISCHARGE. Except to the extent
otherwise provided in Sections 5.03 and 5.04, in the event that Jaeger's
employment with the Corporation is terminated, voluntarily or involuntarily,
before Jaeger attains the Normal Retirement Date, for reasons other than death
or disability, Jaeger shall be entitled to a Supplemental Retirement Benefit,
determined as of the date of his termination of employment. Such benefit shall
be payable in equal monthly installments, commencing on the first day of the
month next following the later of the Normal Retirement Date or the date of
Jaeger's actual retirement, and continuing for fifteen (15) years (except as set
forth in Sections 10.01 and 10.02); provided, however, that Jaeger may elect by
execution and delivery to the Corporation of the form attached hereto as
Schedule B to have the monthly payments of the Supplemental Retirement Benefit
commence prior to the Normal Retirement Date at any date between age 60 and the
Normal Retirement Date. Jaeger understands that such election is being made
prospectively and is irrevocable.
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EXHIBIT 10.69
5.02 OPTIONAL FORMS OF PAYMENT. In lieu of the fifteen (15) years certain
payments provided in Section 5.01, the Supplemental Retirement Benefit payable
under such Section may be payable in the manner provided in Section 2.04.
5.03 EMPLOYMENT BY COMPETITION. In the event that during the two year period
immediately following the termination of Jaeger's employment for any reason,
Jaeger shall compete with the business of the Corporation, then the Supplemental
Retirement Benefit which might otherwise be due and payable hereunder shall be
immediately forfeited and all rights of Jaeger and his beneficiaries hereunder
shall become void; provided, however, that if (a) Jaeger does not remain
employed by the Corporation for any reason during the twelve (12) month period
following a Change in Control or (b) an event described in Section 10.01 occurs
and either such other corporation, firm or person (as described in Section
10.01) does not agree that Jaeger shall continue in the employ of the
Corporation for any reason following such event or the Corporation's successor
does not assume its obligations hereunder, the provisions of Section 5.03 shall
not apply, but the provisions of Sections 10.01 and 10.02 shall govern. Jaeger
will be deemed to have competed with the business of the Corporation if, during
the two year period following termination of his employment with the
Corporation, he either (a) engages, directly or indirectly, or by stock interest
exceeding five percent (5%), or otherwise in any way, in any business in which
the Corporation was engaged during the term of his employment or which the
Corporation planned, during the term of his employment to enter, (b) solicits
any past, present or future customers of the Corporation in any way relating to
any business in which the Corporation was engaged during the term of his
employment, or which the Corporation planned during the term of his employment,
to enter, or (c) induces or actively attempt to influence any other employee or
consultant of the Corporation to terminate his or her employment or consultancy
with the Corporation.
5.04 FORFEITURE. Anything to the contrary in this Agreement notwithstanding
(other than Sections 10.01 and 10.02), the Supplemental Retirement Benefits
shall be immediately forfeited and all rights of Jaeger and his beneficiaries
hereunder shall become null and void, if Jaeger's employment with the
Corporation is terminated for Cause. For this purpose, a termination shall be a
termination for "Cause" only if the termination if for one or more of the
following: (i) the conviction of Jaeger for committing any felony, (ii) stealing
from the Corporation, (iii) a willful breach by Jaeger of a material provision
of this Agreement and (iv) if Jaeger engages in gross misconduct, such as fraud,
dishonesty, gross negligence or insubordination. If (a) Jaeger does not remain
employed by the Corporation for any reason within one year following a Change in
Control or (b) an event described in Section 10.01 occurs and either such other
corporation, firm or person (as described in Section 10.01) does not agree that
Jaeger shall continue in the employ of the Corporation for any reason following
such event or the Corporation's successor does not agree to assume its
obligation hereunder, the provisions of this Section 5.04 shall not apply, but
the provisions of Sections 10.01 and 10.02 shall govern.
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EXHIBIT 10.69
5.05 AVAILABILITY TO CONSULT. For so long as Jaeger is receiving benefits
pursuant to this Agreement, Jaeger will keep himself available to consult with,
and respond to inquiries from, the Corporation relating to its business affairs,
at reasonable time(s) and to reasonable extent.
ARTICLE SIX
6.01 INTEREST. Any payment that is required to be made hereunder that is delayed
beyond the date specified in this Agreement shall bear interest at a variable
rate which shall be the rate of interest on one year U.S. Treasury Bills
determined at the first auction of each calendar year or part thereof during the
period of which interest is to be applied to any obligation hereunder.
ARTICLE SEVEN
7.01 ALIENABILITY. Neither Jaeger, nor any beneficiary under this Agreement
shall have any power or right to transfer, assign, anticipate, hypothecate,
mortgage, commute, modify, or otherwise encumber in advance any of the benefits
payable hereunder, and any attempt to do so shall be deemed null and void. The
seizure of the benefits payable hereunder for the payment of any debts,
judgments, alimony or separate maintenance, owed by Jaeger or his beneficiary or
any of them, or the transfer of such benefit by operation of law in the event of
bankruptcy, or otherwise, shall be deemed to be a transfer prohibited by this
Agreement, and will result in the immediate termination of all benefits payable
hereunder.
ARTICLE EIGHT
8.01 PARTICIPATION IN OTHER PLANS. Nothing contained in this Agreement shall be
construed to alter, abridge, or in any manner affect the rights and privileges
of Jaeger to participate in and be covered by any pension, profit sharing, group
insurance, bonus or any other employee plan or plans which the Corporation may
have or hereafter have.
ARTICLE NINE
9.01 FUNDING.
(a) The Corporation reserves the right at its sole and exclusive discretion
to insure or otherwise provide for the obligations of the Corporation
undertaken by this Agreement or to refrain from same, and to determine
the extent, nature and method thereof, including the establishment of
one or more trusts. Should the Corporation elect to insure this
Agreement, in whole or in part, through the medium of insurance or
annuities, or both, the Corporation shall be the owner and beneficiary
of the policy or annuity. At no time shall Jaeger be deemed to have any
right, title or interest in or to any specified asset or assets of the
Corporation, or any trust or escrow arrangement, including, but not by
way of restriction, any insurance or annuity contracts or the proceeds
therefrom.
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EXHIBIT 10.69
(b) Any such policy, contract or asset shall not in any way be considered
to be security for the performance of the obligations of this
Agreement.
c) If the Corporation purchases a life insurance or annuity policy on the
life of Jaeger, Jaeger agrees to sign any papers that may be required
for that purpose and to undergo any medical examination or tests (at
the Corporation's expense) which may be necessary, and generally
cooperate with the Corporation in securing such policy.
d) To the extent Jaeger acquires a right to receive benefits under this
Agreement, such right shall be equivalent to the right of an unsecured
general creditor of the Corporation.
ARTICLE TEN
10.01 REORGANIZATION. SpecTran shall not merge or consolidate into or with
another corporation if such merger or consolidation shall result in the other
corporation being the survivor corporation, nor shall it sell substantially all
of its assets to another corporation, firm or person, unless and until Jaeger
and such other corporation, firm or person agree that Jaeger shall continue in
the employ of the succeeding, continuing or acquiring corporation, firm or
person and such other corporation, firm or person agrees in writing without
further qualification to assume and discharge the obligations of SpecTran under
this Agreement. If Jaeger and such corporation, firm or person do not agree that
Jaeger shall continue in the employ of such corporation, firm or person, or such
corporation, firm or person does not so agree to assume and discharge such
obligations, SpecTran shall pay to Jaeger, in one lump sum, his Supplemental
Retirement Benefit as of the date of such merger, consolidation or sale. All
calculations of the Supplemental Retirement Benefit, for purposes of this
Section 10.01, shall be discounted to present value in accordance with the
actuarial tables used in SpecTran's defined benefit pension plan.For the purpose
of clarification, any transaction between SpecTran and any of its Affiliates is
not intended to be covered by this Section 10.01.
10.02 CHANGE IN CONTROL. In the event that a Change in Control occurs prior to
the Normal Retirement Date and either (a) Jaeger is dismissed without Cause from
employment by the Corporation up to and including
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EXHIBIT 10.69
twelve (12) months from such Change in Control or (b) Jaeger voluntarily leaves
the employ of the Corporation up to and including twelve (12) months from such
Change in Control, then in either case SpecTran shall pay to Jaeger, in one lump
sum, his Supplemental Retirement Benefit as of the date of the termination of
Jaeger's employment. All calculations of the Supplemental Retirement Benefit,
for purposes of this Section 10.02, shall be discounted to present value in
accordance with the actuarial tables used in SpecTran's defined benefit pension
plan. For the purposes of this Agreement, "Change in Control" shall mean (a) the
date of public announcement that a person has become, without the approval of
SpecTran's Board of Directors, the beneficial owner of 20% or more of the voting
power of all securities of SpecTran then outstanding; (b) the date of the
commencement of a tender offer or tender exchange by any person, without the
approval of SpecTran's Board of Directors, if upon the consummation thereof such
person would be the beneficial owner of 20% or more of the voting power of all
securities of SpecTran then outstanding; or (c) the date on which individuals
who constituted the Board of Directors of SpecTran on the date this Agreement
was adopted cease for any reason to constitute a majority thereof, provided that
any person becoming a director subsequent to such date whose election or
nomination was approved by at least three quarters of such incumbent Board of
Directors shall be considered as though such person were an incumbent director.
ARTICLE ELEVEN
11.01 BENEFITS AND BURDENS. This Agreement shall be binding upon and inure to
the benefit of Jaeger and his personal representatives, the Corporation, and any
successor organization which shall succeed to substantially all of the
Corporation's assets and business without regard to the form of such succession.
ARTICLE TWELVE
12.01 COMMUNICATIONS. Any notice or communication required of either party with
respect to this Agreement shall be made in writing and may either be delivered
personally or sent by certified mail, return receipt requested, as the case may
be:
To the Corporation:
c/o President of the Corporation
SpecTran Corporation
50 Hall Road
Sturbridge, MA 01566
To Jaeger:
Raymond E. Jaeger
25 Old Village Road
Sturbridge, MA 01566
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Each party shall have the right by written notice to change the place to which
any notice may be addressed.
ARTICLE THIRTEEN
13.01 CLAIMS PROCEDURE. In the event that benefits under this Agreement are not
paid to Jaeger (or his beneficiary in the case of Jaeger's death), and such
person feels entitled to receive them, a claim shall be made in writing to the
Corporation within sixty (60) days after written notice from the Corporation to
Jaeger or his beneficiary or personal representative that payments are not being
made or are not to be made under this Agreement. Such claim shall be reviewed by
the Corporation. If the claim is approved or denied, in full or in part, the
Corporation shall provide a written notice of approval or denial within sixty
(60) days from the date of receipt of the claim setting forth the specific
reason for denial, specific reference to the provision of this Agreement upon
which the denial is based, and any additional material or information necessary
to perfect the claim, if any. Also, such written notice shall indicate the steps
to be taken if a review of the denial is desired. If a claim is denied (a claim
shall be deemed denied if the Corporation does not take action within the
aforesaid sixty (60) day period) and a review is desired, Jaeger (or beneficiary
in the case of Jaeger's death), shall notify the Corporation in writing within
twenty (20) days. In requesting a review, Jaeger or his beneficiary may review
this Agreement or any document relating to it and submit any written issues and
comments he or she may feel appropriate. In its sole discretion the Corporation
shall then review the claim and provide a written decision within sixty (60)
days. This decision likewise shall state the specific reasons for the decision
and shall include reference to specific provisions of this Agreement on which
the decision is based.Any decision of the Corporation shall not be binding on
Jaeger, his personal representative, or any beneficiary without consent, nor
shall it preclude further action by Jaeger, his personal representatives or
beneficiary.
13.02 ARBITRATION. All claims, disputes and other matters in question between
the parties hereto arising out of or relating to this Agreement or the breach
thereof shall be decided by arbitration in accordance with the Rules of the
American Arbitration Association then obtaining, subject to the limitations and
restrictions stated below. Neither party will be permitted to submit a dispute
to arbitration without first following the procedures set forth in Section
13.01. Notice of demand for arbitration must be filed in writing with the other
party to this Agreement and with the American Arbitration Association. The
demand must be made within a reasonable time after the claim, dispute or other
matter in question has arisen. In no event may the demand for arbitration be
made if the institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by the applicable statute of
limitations. Arbitrations hereunder will be held in the English language in
Boston, Massachusetts or such other place as the parties may agree. The award
rendered by the arbitrators will be final, not subject to appeal and judgment
may be entered upon it in any court having jurisdiction thereof. Each party will
bear all of his or its own costs and expenses
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EXHIBIT 10.69
associated with the arbitration, and the parties shall equally share the
administrative costs of the arbitration.
ARTICLE FOURTEEN
14.01 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all prior
agreements, written or verbal, with respect to such subject matter. This
instrument may be altered or amended only by written agreement signed by the
parties hereto.
14.02 GENDER. Any reference in this Agreement to the masculine shall be deemed
to include the feminine where the context so requires.
14.03 OPERATION OF LAW ON CORPORATION'S OBLIGATIONS. In the event that any
governmental entity promulgates any statute, rule, regulation, policy or order
which restricts or prohibits the Corporation from making payments to Jaeger
under this Agreement, then the Corporation's obligations to make payments to
Jaeger (or his beneficiary) hereunder shall terminate or be restricted or
suspended (consistent with such law or binding regulation, policy or order) for
so long as such restriction or prohibition applies to the Corporation. Nothing
in this Agreement is intended to require or shall be construed as requiring the
Corporation to do or fail to do any act in violation of any applicable law or
binding regulation, policy or order.
14.04 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be considered an original, but together shall constitute one
and the same document.
14.05 SEVERANCE. In the event any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall remain in full force and effect and will not be affected by
such invalid or unenforceable provisions.
14.06 JURISDICTION, GOVERNING LAW. The parties, terms and conditions of this
Agreement are subject to and shall be governed by the laws of the Commonwealth
of Massachusetts without giving effect to the principles of conflicts of law.
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EXHIBIT 10.69
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed by its duly authorized officer and its Corporate Seal affixed at
Sturbridge, Massachusetts the day and year first above written.
SPECTRAN CORPORATION
_________________________ By_____________________________________
Witness Name:
Title:
_________________________ _______________________________________
Witness Raymond E. Jaeger
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EXHIBIT 10.69
SCHEDULE A
DESIGNATION OF BENEFICIARY
Gentlemen:In accordance with the provisions of the Supplemental Retirement
Agreement dated May 8, 1996, between SpecTran Corporation and the undersigned, I
hereby designate ____________________, residing at ________________________,* as
my beneficiary to receive payments thereunder in the event of my death before
payments in full thereunder have been made. In the event said beneficiary
predeceases me, I hereby designate _________________, residing at
___________________________,* as beneficiary in his/her stead.
Very truly yours,
_________________________
*If more than one beneficiary is to be designated, add a page listing the
beneficiaries and specify the percentage of each payment to be received by each
beneficiary.
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EXHIBIT 10.69
SCHEDULE B
Gentlemen:
In accordance with Section 5.01 of the Supplemental Retirement Agreement dated
May 8, 1996, between SpecTran Corporation and the undersigned, I hereby
prospectively and irrevocably make the election indicated below with respect to
the payment of benefits:
[CHECK ONE]
______ I elect to commence receiving benefits prior to age 65 if I retire before
the Normal Retirement Age, with the benefits to commence at age ____ [Specify
age between 60 and 65].
OR
______ I elect to commence receiving benefits after the Normal Retirement Date
and forego my right to receive benefits prior to the Normal Retirement Age.
Very truly yours,
_______________________
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