Exhibit 10.2




 




Spherix Incorported




 






















 




AMENDED AND RESTATED


SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT




 




This AMENDED

AND RESTATED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT (this

“Agreement”), made and entered into this 15th day of May, 2002, between

SPHERIX INCORPORATED, a corporation organized under the laws of the state of

Delaware (hereinafter referred to as the “Corporation”), and M. Karen Levin

(hereinafter referred to as the “Employee”).




 




Witnesseth




 




WHEREAS, the

Corporation is engaged in research, development, products and services in the

areas of chemistry, biology, microbiology, occupational health, air and water

pollution control, toxicology, wastewater treatment, environmental and medical

products, writing, editing, word processing, graphics arts, and information

services; and




 




WHEREAS, the

Employee has been engaged as an expert and corporate executive in major

enterprises in the areas indicated above; and




 




WHEREAS, the

Employee is presently Vice President, Communications; and




 




WHEREAS,

during the period of the Employee’s employment, the Corporation has greatly

enhanced its activities and prestige largely as a result of the activities by

the Employee on behalf of the Corporation:




 




NOW,

THEREFORE, in consideration of the mutual promises and covenants herein set

forth and other good and valuable consideration, the receipt of which is hereby

acknowledged, the Corporation and the Employee do hereby agree, each with the

other as follows:




 




1.             Employment.         The Employee hereby agrees to remain in

the full-time or part-time employ, as determined by the Board, of the

Corporation, until her retirement, death, or disability, or such other time as

the Employee and the Corporation agree. Until the occurrence of one of the

events set forth above, the employee shall continue to devote her full—time or

part-time, as determined by the Board, attention exclusively to the business of

the Corporation. As used herein, the term “retirement” shall mean the time at

which the Employee ceases to provide services to the Corporation.




 




2.             Compensation.




 




(a)           As compensation for rendering

full-time or part-time attention to-the business of the Corporation until the

occurrence of an event specified in Section 1 of this Agreement, the

Corporation hereby agrees to




 




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pay the Employee compensation

at the rate of compensation now being paid her or at such other higher rate as

may, from time to time, be agreed upon. Any increase in the rate or change in

the method of compensation shall in no way be deemed a violation or waiver of

any of the provisions of this Agreement.




 




(b)           As a Supplemental Executive

Retirement Plan (SERP) payment for services currently being rendered, and in

order to assure the Employee of adequate retirement income, the Corporation

hereby agrees to pay the Employee a monthly SERP payment according to the

following formula:




 




Sixty percent

(60%) of average total compensation, defined as base salary plus annual bonus,

for the highest three (3) years of full-time employment prior to retirement,

divided by twelve (12), less the sum of the following three (3) items

calculated on a monthly basis: i) fifty percent (50%) of the Social

Security payment received by the Employee; ii) the monthly amount the Employee

would receive if the 401(k) plan lump sum payment attributable to company

contributions received by the Employee upon her retirement, including the value

of any loans or withdrawals, mandatory or voluntary, taken by the Employee

prior to her retirement (which value shall be computed using as the relevant

interest rate, the national average prime rate applied to the loan or

distribution from date of receipt), were used to acquire an annuity which would

pay equal monthly payments commencing on the date of retirement and continuing

throughout the actuarially determined balance of the Employee’s lifetime (which

amount shall be computed using as the relevant interest rate, the average prime

rate as published by the Wall Street Journal or other national daily

business publication for the thirty (30) day period immediately preceding

retirement); and iii) the monthly amount the Employee would receive if the lump

sum payment received by the Employee from the Corporation’s defined benefit

pension plan (which value shall he computed using as the relevant interest

rate, the national average prime rate applied to the lump sum payment from date

of receipt) were used to acquire an annuity which would pay equal monthly

payments commencing on the date of retirement and continuing throughout the

actuarially determined balance of the Employee’s lifetime (which amount shall

be computed using as the relevant interest rate, the average prime rate as

published by the Wall Street Journal or other national daily business

publication for the thirty (30) day period immediately preceding retirement).




 




Payment of the SERP shall

commence with the first month following the Employee’s retirement from the

Corporation, and shall be paid monthly for the remainder of the Employee’s

lifetime. In the event the Employee retires from the Corporation due to a

disability, the SERP payment will be calculated according to the following

formula:




 




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Sixty percent

(60%) of average total compensation, defined as base salary plus annual bonus,

for the highest three (3) years of full-time employment prior to retirement,

divided by twelve (12), less the sum of the following four (4) items calculated

on a monthly basis: i) fifty percent (50%) of the Social Security payment

received by the Employee; ii) the monthly amount the Employee would receive if

the 401(k) plan lump sum payment attributable to company contributions received

by the Employee upon her retirement, including the value of any loans or

withdrawals, mandatory or voluntary, taken by the Employee prior to her

retirement (which value shall be computed using as the relevant interest rate,

the national average prime rate applied to the loan or distribution from date

of receipt), were used to acquire an annuity which would pay equal monthly

payments commencing on the date of retirement and continuing throughout the

actuarially determined balance of the Employee’s lifetime (which amount shall

be computed using as the relevant interest rate, the average prime rate as published

by the Wall Street Journal or other national daily business publication

for the thirty (30) day period immediately preceding retirement); iii) the

monthly amount the Employee would receive if the lump sum payment received by

the Employee from the Corporation’s defined benefit pension plan (which value

shall be computed using as the relevant interest rate, the national average

prime rate applied to the lump sum payment from date of receipt) were used to

acquire an annuity which would pay equal monthly payments commencing on the

date of retirement and continuing throughout the actuarially determined balance

of the Employee’s lifetime (which amount shall be computed using as the

relevant interest rate, the average prime rate as published by the Wall

Street Journal or other national daily business publication for the thirty

(30) day period immediately preceding retirement); and iv) payment from any

company-provided short or long term disability plan in effect for employees of

the Corporation.




 




In the event disability

payments cease because of terms of the insurance contract specifying duration

of benefits, the SERP payment will be recalculated without the offset of item

(iv).




 




(c)           The SERP payment provided for in

Section 2(b) shall be adjusted in the second and subsequent years of payment so

that payments are increased or decreased to reflect the net change in the

Consumer Price Index (“CPI”) for the Washington DC Metropolitan area as

prepared by the United States Department of Labor, Bureau of Labor Statistics,

when compared with the first year in which payments are made. In the event that

there is no Consumer Price Index for the Washington DC Metropolitan area, the

Consumer Price Index for the nearest metropolitan area for which there is such

an index shall be used as the basis for adjusting the SERP payment. If no

metropolitan area Consumer




 




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Price Index exists, the

national Consumer Price Index for the United States shall be used as the basis

for adjusting the SERP payment. The amount of the adjustment shall equal one

hundred percent (100%) of the change in the CPI up to and including ten percent

(10%) plus seventy-five percent (75%) of any change in the CPI in excess often

percent (10%). In making such adjustments, the calendar year in which the first

payment is made under Section 2(b) shall be treated as the base year, and all

adjustments made shall proportionately reflect subsequent changes in the CPI as

compared with that base year. All adjustments under this Section 2(c) shall be

made commencing with each anniversary date of the first payment made under

Section 2(b). Following the adjustment of the payment amount on such an

anniversary date, payment shall continue to be made at that adjusted rate until

the next such anniversary date, at which time payment shall again be adjusted

to reflect the provisions of this section.




 




(d)           The Board of Directors, at its

discretion, may increase the adjustment above the level of the CPI change, but

shall not provide an adjustment less than the CPI change.




 




(e)           All SERP payments shall be subject to

any deductions the Corporation is required to make under applicable State or

Federal law.




 




(f)            This Agreement shall not preclude,

in addition to current compensation or SERP payments as specified herein, the

payment to the Employee of such other or additional amounts as may be payable

or distributable during the term of employment or thereafter, or restrict in

any way any benefits payable under any employee benefit plan of the Corporation

now in effect or hereafter adopted. Neither shall any payment under this

Agreement be deemed to constitute payment in lieu of or in reduction of any

compensation or any benefit under such plans.




 




3.             Merger or Consolidation.   Notwithstanding any provisions in this

Agreement to the contrary, in the event of a merger, consolidation, or

reorganization of the Corporation (whether the Corporation is the continuing or

disappearing entity), the Corporation shall advise the successor organization

of the terms of this Agreement. In any event, however, this Agreement shall be

binding upon the organization that is the successor to the Corporation and the

Corporation shall remain liable subsequent to the consolidation or merger in

the same manner as immediately prior thereto. In the event of any merger or

consolidation of the Corporation or other similar transaction to which the

Employee does not assent as a Director or stockholder due to the Employee’s

good faith determination that such transaction is likely to materially and

adversely affect the financial ability of the surviving entity to perform this




 




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Agreement, the Employee shall

have the election to accelerate all future payments then due and to receive the

commuted actuarial value of those remaining future payments at the time of such

transfer.




 




4.1           Non-Competition.




 




(a)           During a period of three (3) years

following retirement, the Employee will not, directly or indirectly, either

individually or as owner, partner, agent, employee, consultant or otherwise,

engage in any activity competitive with the business of the Corporation or its

affiliates, nor will she, in competition with the Corporation or its

affiliates, solicit or otherwise attempt to establish for herself or any other

person, firm or entity, any business relationships with any person, firm or

corporation which was, at any time during the employment period of the Employee

with the Corporation, a customer of the Corporation or one of its affiliates. Any

violations of this provision shall be grounds for termination by the

Corporation of this Supplemental Executive Retirement Plan Agreement.




 




(b)           Nothing in this paragraph 4.1 shall

be construed to prevent the Employee from owning, as an investment, not more

than 1% of a class of equity securities issued by any competitor of the

Corporation or its affiliates and publicly traded and registered under Section

12 of the Securities Exchange Act of 1934.




 




4.2           Trade Secrets.       The Employee will keep confidential any

trade secrets or confidential or proprietary information of the Corporation and

its affiliates which are now known to her or which hereafter may become known

to her as a result of her employment or association with the Corporation and

shall not at any time directly or indirectly disclose any such information to

any person, firm or corporation, or use the same in any way other than in

connection with the business of the Corporation or its affiliates at all times

during retirement. For purposes of this Agreement, “trade secrets or

confidential or proprietary information” means information unique to the

Corporation or any of its affiliates which has a significant business purpose

and is not known or generally available from sources outside the Corporation or

any of its affiliates or typical of industry practice. Any violations of this

provision shall be grounds for termination by the Corporation of this

Supplemental Executive Retirement Plan Agreement.




 




5.             Corporation’s Remedies for

Breach. It is recognized that damages

in the event of breach of paragraphs 4.1 or 4.2 by the Employee would be

difficult, if not impossible, to ascertain, and it is therefore agreed that the

Corporation, in addition to and without limiting any other remedy or right they

may have, shall terminate SERP payments as provided under this Agreement in the

event of breach of paragraphs 4.1 or 4.2. Prior to the termination of SERP

payments, however, the Corporation shall provide summary notice to the Employee

of such action, by registered or certified mail, return receipt requested,

addressed to the Employee at her then principal residence




 




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according to the records of the

Corporation. The Employee shall have thirty (30) days from date of receipt of

this summary notice to respond in writing to the Corporation at its then

principal offices. SERP payments shall be terminated if Employee response is

not timely, or if Employee response does not negate allegations of

non-competition and/or confidentiality violations. In addition, the Corporation

shall have the right to seek an injunction or other equitable relief in any

court of competent jurisdiction, enjoining any such breach, and the Employee

hereby waives any and all defenses she may have on the ground of lack of

jurisdiction or competence of the court to grant such an injunction or other

equitable relief. The existence of this right shall not preclude any other

rights and remedies at law or in equity which the Corporation may have.




 




6.             Non-Alienation.   This Agreement is personal to the Employee

and may not be assigned by her; further, this Agreement may not be assigned by

the Corporation except in connection with the assignment/transfer of

substantially all of its assets. With respect to SERP payments provided in

Section 2 (b) of this Agreement, the right to receive such payments shall not

be subject in any manner to anticipation, alienation, sale, transfer,

assignment, pledge, encumbrance, or charge; and any attempt to so anticipate,

alienate, sell, transfer, assign, pledge, encumber or charge the same shall be

void. Such rights shall not in any manner be liable for or subject to the

debts, contracts, liabilities, engagements or torts of the Employee.




 




7.             Prohibition Against Funding.            The Corporation’s obligation to pay

benefits under this Agreement is only a contractual obligation and nothing

herein shall be deemed to require the Corporation to segregate assets or

otherwise fund this obligation. Further, nothing contained in this Agreement

and no action taken pursuant to the provisions of this Agreement shall create

or be construed to create a trust of any kind or a fiduciary relationship

between the Corporation and the Employee or any other person.




 




8.             Incompetence or Death.      If the Board of Directors of the

Corporation finds that the Employee is unable to care for her affairs, any

payment due (unless a prior claim therefore shall have been made by a duly

appointed guardian, committee, or other legal representative) may be paid to

the spouse, child, or to any person deemed by the Board to have incurred

expenses for the Employee, in such manner and proportions as the Board may

determine. Any such distribution of the full payment due shall be a complete

discharge of the liabilities of the Corporation under this Agreement.




 




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If the

Employee dies, any payment due the Employee shall be made to such persons as

the Employee shall designate in writing before her death, or upon failure to

make such designation, then to the Employee’s surviving spouse, or if none, to

whomsoever she shall appoint by will.




 




9.             Legal Costs.          If the Corporation shall fail to pay

or provide for payment of any amounts required to be paid or provided for

hereunder at any time, the Employee shall be entitled to consult with counsel,

and the Corporation agrees to pay the reasonable fees and expenses of

independent counsel for the Employee in advising her or in bringing any

proceedings, or in defending any proceedings, involving the Employee’s rights

under this Agreement, such right to reimbursement to be immediate upon the

presentment by Employee of written billings for such reasonable fees and

expenses. The Employee shall be entitled to the prime rate of interest as

published in the daily Wall Street Journal or other national daily

business publication for any payments of such expenses, or any other payments

under this Agreement, that are overdue.




 




10.           Waiver.  A waiver of any breach of this Agreement shall not be a waiver of

any subsequent, similar or dissimilar, breach of any provision hereof.




 




11.           Termination for Cause.        In the event the Employee is terminated

for cause, this Supplemental Executive Retirement Plan Agreement shall be

terminated.




 




For purposes

of this Agreement, “cause” means (i) fraud, misappropriation or intentional

material damage to the property or business of the Corporation; commission of a

felony; (ii) continuance of (A) willful and repeated failure by the Employee to

perform her duties or (B) violation of a basic policy of the Corporation

concerning the scope of the authority of the Employee, in either case after

written notice to the Employee by the Board of Directors specifying such

failure, providing that such “cause” shall have been found by a majority vote

of the Board of Directors of the Corporation after at least 10 days written

notice to the executive specifying the cause proposed to be claimed and after

an opportunity for the Employee to be heard at meetings of such Board of

Directors; or (iii) a violation of paragraphs 4.1 or 4.2 of this Agreement.




 




12.           Notices. Any notice required or permitted to be given

hereunder shall be in writing and given personally or by registered or

certified mail, return receipt requested, addressed, in the case of notice to

the Employee, at her then principal residence according to the records of the

Corporation, or in the case of notice to the Corporation, to it at its then

principal offices. Any notice by such mail shall be deemed to have been given

when mailed.




 




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13.           Entire Agreement. This

Agreement constitutes the entire understanding of the Employee and the

Corporation with respect to the subject matter hereof and supersedes any and

all prior understandings written or oral. This Agreement may not be changed,

modified, or. discharged orally, but only by an instrument in writing signed by

the parties. This Agreement shall be governed by the laws of the State of

Maryland and the invalidity or lack of enforceability of any provisions hereof

shall in no way affect the validity or enforceability of any other provision.




 




IN WITNESS

WHEREOF, the Corporation has caused this Agreement to be executed on its behalf

and its corporate seal to be hereunto affixed by its duly appointed officers,

and the Employee has set her hand and seal to this Agreement, all as of the

date first above written.




 




	

   


  	

   


  	

  SPHERIX

  INCORPORATED


  
	

  (SEAL)


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  
	

  Attest


  	

   


  	

   


  	

  By


  	

   


  
	

   


  	

  Katherine M.

  Brailer


  	

   


  	

  Lionel V.

  Baldwin


  
	

   


  	

  Corporate

  Secretary


  	

   


  	

  Chairman,

  Compensation Committee


  
	

   


  	

   


  	

   


  	

   


  
	

  Witness


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

  M. Karen

  Levin


  





 




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