1
Exhibit 10.8
[ I. E. XXXXXXX & CO LETTERHEAD ]
AGREEMENT BETWEEN DISTRICT 65 PENSION PLAN
AND
SHOP-VAC CORPORATION (Shop #3569)
CONCERNING PRELIMINARY PAYMENTS
This agreement (the "Agreement") is made as of the 14th day of March,
1996 by and between the District 65 Pension Plan and its Trustees (the "Plan")
and SHOP-VAC CORPORATION (Shop #3569) (the "Employer").
WHEREAS, the Employer may be required to contribute to the Plan to
satisfy the minimum funding requirements set forth in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and the Internal Revenue Code
and/or may have effected a "complete" or "partial" withdrawal from the Plan as
those terms are used in Title IV of ERISA;
WHEREAS, the Plan has not yet assessed withdrawal liability against the
Employer;
WHEREAS, the Employer has agreed to make certain payments to the Plan,
which payments may be used to satisfy, in whole or in part, the
EMPLOYEE BENEFIT PLAN ADMINISTRATORS & CONSULTANTS
2
Employer's obligation to pay to the Plan withdrawal liability to the extent such
obligation exists.
NOW, THEREFORE, in consideration of the covenants and
conditions set forth herein, the parties intending to be legally bound, agree as
follows:
1. The Employer shall pay to the Plan $47,114 quarterly: The
Employer's quarterly withdrawal liability payment shall be one-forth of the
amount the Plan determines for the Employer pursuant to Section 4219(c)(1)(C) of
ERISA using a 5% contribution rate (or higher, if the collective bargaining
agreement specified a pension contribution rate in excess of 5%) in lieu of the
Section 4219(c)(1)(C) rate, if different, and not including a portion of any
minimum funding deficiency. The Plan shall receive the first quarterly
installment on or before March 15, 1996. The Plan shall receive additional
quarterly installments of the same amount from the Employer until this Agreement
is terminated. The Employer shall pay interest on all late payments under this
Agreement at the rate set forth in 29 C.F.R. S 2644.3. The amounts paid to the
Plan pursuant to this Agreement shall be used to satisfy, in whole or part,
first, the Employer's obligation to pay withdrawal liability, and second, the
Employer's obligation to pay minimum funding contributions to the Plan, if such
obligation(s) exist. The amounts paid to the Plan pursuant to this Agreement
shall be allocated between principal and interest on the Employer's withdrawal
liability obligation, if any, as follows: (a) if the parties to this Agreement
enter into an agreement settling the Plan's withdrawal liability claims against
the Employer, then in accordance with such settlement agreement; or (b) if the
parties do not settle the Plan's
3
claims against the employer for withdrawal liability, then in a manner
consistent with an arbitrator's or court's final non-appealable order
interpreting Section 4219(c)(1)(i)(II) of ERISA.
2. The quarterly payment amount of $47,114 set forth in
paragraph 1 of this Agreement is based upon contribution records maintained by
the Plan. If at any time during the term of this Agreement the Employer can show
to the reasonable satisfaction of the Plan that the Plan's records are
incorrect, of the Plan can show to the reasonable satisfaction of the Employer
that the Plan's record, are incorrect, the quarterly payment set forth in
paragraph 1 of this Agreement shall be adjusted accordingly for the remainder of
this Agreement.
3. If it is determined by an arbitrator's order that is not
subject to appeal, a court order that is not subject to appeal, or a settlement
agreement between the parties that the Employer's payments hereunder exceed the
amounts due to the Plan from the Employer for withdrawal liability and minimum
funding contributions, the Plan shall refund to the Employer all such excess
payments, plus interest in accordance with 29 C.F.R. S2644.2(d)
4. The payments made by the Employer hereunder do not
constitute an admission of any kind that the Employer has an obligation to pay
to the Plan withdrawal liability and/or the minimum funding contributions and
the Employer retains all rights, if any, to contest the assertion by the Plan
that the Employer has any such obligations, the amount of such obligations (if
any), or the payment schedule of such obligations (if any).
4
5. The payments accepted by the Plan under this Agreement
shall not constitute an admission by the Plan of any kind concerning the method
or assumptions used to calculate the Employer's alleged withdrawal liability or
minimum funding contribution amount or to calculate the payment schedule of the
Employer's alleged withdrawal liability or alleged minimum fund obligations to
the Plan.
6. The Employer recognizes that the Plan is not at this time
issuing a notice of withdrawal liability and demand for payment thereof (the
"Assessment") and agrees that during the term of this Agreement the time period
for the Plan to issue an Assessment pursuant to Section 4219 of ERISA is tolled,
and that the time period during which this Agreement is effective shall not be
included in determining whether the Assessment complies with ERISA.
7. The Plan agrees it will not assess the Employer withdrawal
liability or payment of a minimum funding contribution until the earliest of:
(a) the date on which the Employer is thirty (30) days late in paying to the
Plan any obligation under this Agreement; (b) the date on which, for the third
time, an Employer's obligation under this Agreement is late; (c) the date on
which an arbitrator's or court's final order determining whether an employer's
minimum funding contribution may increase the rate set forth in Section
4219(c)(1)(C)(i)(II) of ERISA is not subject to appeal; (d) the date on which
the Plan reasonably determines that the financial condition of the Employer may
jeopardize the Plan's ability to collect the Employer's alleged withdrawal
liability and minimum funding obligations to the Plan; (e) the date on which the
parties to this Agreement enter into an agreement settling the Plan's claims
against the Employer for withdrawal
5
liability and minimum funding; (f) June 15, 1996, if arbitration or litigation
concerning the issue described in subparagraph (c) of this paragraph has not
been commenced; and (g) the date on which the Employer commences litigation
against the Plan other than litigation concerning the issue described in
subparagraph (c) of this paragraph.
8. This Agreement shall commence on the date first written
above. The obligations to make the quarterly payments under paragraph 1 shall
terminate on the date on which the Plan issues an assessment to the Employer for
payment of either withdrawal liability or a minimum funding contribution, or by
either party providing thirty (30) days notice to the other, such notice to be
given no earlier than May 15, 1996.
9. This Agreement shalt be governed and construed in
accordance with the laws of the State of New York, except where preempted by
ERISA.
10. All notices hereunder shall be sent by certified mail,
return receipt requested, as follows:
If to the Plan:
District 65 PensIon Plan
c/o Xxxxx X. Xxxxxxx
President
I.E. Xxxxxxx & Co.
000 Xxxx Xxxxxx Xxxx
CN 00000
Xxxx Xxxxxxx, XX 00000-0000
WITH A COPY TO:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
and
0
Xxxxxxx X. Xxxxx, Xxx.
Xxxxxx & Josem
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
If to the Employer:
Xxxxx X. Grill
Shop Vac Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000-0000
WITH A COPY TO:
C. Xxxxxxx Xxxxxx, Jr.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
11. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and superseded
any and all prior agreements or understandings between the parties
arising out of or relating to the subject matter hereof. This Agreement
may only be amended by a writing executed by both parties.
Dated: March 14, 0000
Xxx Xxxx, Xxx Xxxx
DISTRICT 65 PENSION PLAN SHOP-VAC CORPORATION
/s/ unreadable /s/ Xxxxx X. Grill
------------------------ ----------------------
By: By: Xxxxx X. Grill
Vice President, Taxes &
Benefits
