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EXHIBIT 10.72
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
William B. Beck (hereinafter called "Beck").
PURPOSE AND INTENT
This agreement (the "Agreement") is designed to recognize Beck's
contribution to the Corporation(1) and encourage Beck to remain in the
Corporation's employ by providing supplemental retirement benefits, keyed to a
specified percentage of his compensation, so that Beck'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 Beck 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 Beck; if Beck 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 Beck will be
available to consult for the Corporation. Further, these benefits are subject to
forfeiture if Beck is terminated for Cause (as defined herein) or, as described
below, competes with the Corporation.
Beck has been employed by the Corporation since 1994, and currently
holds the position of President of SpecTran Specialty Optics Company, Inc., a
wholly owned subsidiary
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(1) Initial capitalized words may be defined below under the heading "Certain
Definitions".
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EXHIBIT 10.72
of SpecTran. The Board of Directors of SpecTran voted on May 8, 1996 to
authorize the Corporation to enter into this Agreement with Beck.
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 Beck's annual
compensation (defined as base salary, eligible bonus(2) and any salary reduction
amounts pursuant to Sections
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(2) To the extent that the average annual bonus paid to Beck during the 36 month
period in which the Benefit Computation Base is calculated is greater than fifty
percent (50%) of Beck'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 Beck'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 Beck's average annual base
salary over the 36 month period is $105,000. Accordingly, of Beck'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.
2.
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 Beck's average
annual base salary over the 36 month period is $105,000. Beck'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 10.72
401(k) or 125 of the Code) paid during the thirty-six (36) consecutive calendar
months during Beck'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 Beck'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 Beck in such capacity as the
Corporation may from time to time determine. Notwithstanding anything contained
herein, this Agreement
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EXHIBIT 10.72
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 Beck'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. Beck has no option to
take any current payment or bonus in lieu of these salary continuation benefits.
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ARTICLE TWO
2.01 SUPPLEMENTAL RETIREMENT BENEFIT. Depending upon how many years Beck has
been continuously in the employ of the Corporation, Beck 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 Beck's Benefit Computation Base
multiplied by the Annual Percentage Amount (as determined pursuant to Section
2.02, below). Beck 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 Beck'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 10.72
2.02 ANNUAL PERCENTAGE AMOUNT.
(a) The Annual Percentage Amount shall be determined (subject to
subsection (b), below) by the number of years Beck 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) Beck 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 Beck 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, Beck 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 Beck has
been continuously employed by the Corporation as follows:
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EXHIBIT 10.72
================================================================================
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) Beck 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 Beck 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
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EXHIBIT 10.72
hereunder is considered a Parachute Payment and when combined with all
other payments considered to be Parachute Payments from the
Corporation to Beck 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 Beck 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 Beck 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 Payment.
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 Beck's (actual or
projected) annual primary social security retirement benefit
projected as of Beck's social security normal retirement age
based on his Benefit Computation Base in effect on the date of
termination of Beck's employment with the Corporation;
2. The annual amount of benefits payable to Beck (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;
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EXHIBIT 10.72
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 Beck
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 Beck 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
Beck under this Agreement will be made assuming that Beck participates
in the Offsetting Benefits to the full extent permitted by law and the
terms of those plans.
(d) If Beck 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 Beck's social security normal
retirement age assuming continued
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earnings by Beck at the rate in effect at termination of employment
until Beck's social security normal retirement age; (ii) the offset
for any qualified defined benefit plan shall be calculated on the
basis of Beck's accrued benefit in said plan upon termination of
employment projected to be payable at Beck's Normal Retirement Date;
(iii) the offset for any benefits arising from employer contributions
attributable to the account balances of Beck arising from the
Corporation's 401(k) plan or any other defined contribution retirement
plan shall also be calculated on the basis of Beck's accrued benefit
in such plan(s) upon termination of employment projected to be payable
at Beck's Normal Retirement Date; and (iv) the offset for any
non-qualified supplemental retirement plan shall be calculated on the
basis of Beck's accrued benefit in said plan upon termination of
employment projected to be payable at Beck'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, Beck 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 Beck under
the terms of SpecTran's qualified defined benefit pension plan.
2.05 VESTING. Anything to the contrary in this Agreement notwithstanding, Beck
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
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EXHIBIT 10.72
the Corporation, provided that such benefits are subject to forfeiture as
described in Sections 5.03 and 5.04, below.
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EXHIBIT 10.72
ARTICLE THREE
3.01 DEATH OF BECK.
(a) If Beck 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 Beck, a total annual amount equal to the Supplemental
Benefit earned by Beck 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 Beck 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 Beck until
all of the Supplemental Retirement Benefit has been paid.
(c) If Beck 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 Beck's named beneficiaries an annual benefit
which shall be Beck'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 Beck's designated beneficiaries shall be
entitled to accelerated payments of such benefits if and to the same
extent Beck would have been entitled to an accelerated payment of the
Supplemental Retirement Benefit had he survived.
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EXHIBIT 10.72
3.02 BENEFICIARIES. Beck shall designate, in writing to the Corporation, on the
form titled "Designation of Beneficiary" attached hereto as Schedule A, one or
more beneficiaries. Beck 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 Beck'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 Beck, or if
none, to the beneficiary's estate.
ARTICLE FOUR
4.01 DISABILITY PRIOR TO RETIREMENT. In the event Beck 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 Beck through such
insurance programs as may be sponsored by the Corporation. Upon the later of
termination of such other disability benefits (if any), or Beck's attainment of
the Normal Retirement Date, Beck 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 Beck 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, Beck 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
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EXHIBIT 10.72
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 Beck's
employment with the Corporation is terminated, voluntarily or involuntarily,
before Beck attains the Normal Retirement Date, for reasons other than death or
disability, Beck 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
Beck's actual retirement, and continuing for fifteen (15) years (except as set
forth in Sections 10.01 and 10.02); provided, however, that Beck 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. Beck understands that such election is being made
prospectively and is irrevocable.
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 Beck's employment for any reason, Beck
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 Beck and his beneficiaries hereunder
shall become void; provided, however, that if (a) Beck
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EXHIBIT 10.72
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 Beck 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. Beck 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 Beck and his beneficiaries
hereunder shall become null and void, if Beck'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 Beck for committing any felony, (ii) stealing from the
Corporation, (iii) a willful breach by Beck of a material provision of this
Agreement and (iv) if Beck engages in gross misconduct, such as fraud,
dishonesty, gross negligence or insubordination.
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EXHIBIT 10.72
If (a) Beck 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 Beck 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.
5.05 AVAILABILITY TO CONSULT. For so long as Beck is receiving benefits pursuant
to this Agreement, Beck 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 Beck, 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 Beck 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.
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EXHIBIT 10.72
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 Beck 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 Beck 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.
(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 Beck, Beck 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 Beck 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.
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EXHIBIT 10.72
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 Beck and
such other corporation, firm or person agree that Beck 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 Beck and such corporation, firm or person do not agree that Beck
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 Beck, 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) Beck is dismissed without Cause from
employment by the Corporation up to and including twelve (12) months from such
Change in Control or (b) Beck 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 Beck, in one lump sum, his Supplemental
Retirement Benefit as of the date of the termination of Beck'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
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EXHIBIT 10.72
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 Beck 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 Beck:
William B. Beck
33 Loveland Road
North Granby, CT 06060
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 Beck (or his beneficiary in the case of Beck'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
Beck 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, Beck (or beneficiary
in the case of Beck's death), shall notify the Corporation in writing within
twenty (20) days. In requesting a review, Beck 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 Beck, his personal
representative, or any beneficiary without consent, nor shall it preclude
further action by Beck, 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.
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EXHIBIT 10.72
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 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 Beck under
this Agreement, then the Corporation's obligations to make payments to Beck (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.
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 William B. Beck
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EXHIBIT 10.72
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 10.72
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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