Exhibit 10.4
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
SCHEDULE OF EXECUTIVES
The Supplemental Executive Retirement Agreement entered into
by certain executives of Mestek, Inc. are identical in all
respects, except for the name of the executive and the date of
execution.
Set forth below is the identity of each executive of Mestek, Inc. who
is a signatory to the Supplemental Executive Retirement Agreement, and the date
upon which the Agreement was executed by the executive.
Year of
Executive Execution
Xxxxx X. Xxxx 1997
X. Xxxxx Xxxxx 1997
Xxxx X. Xxxxxxxx 1997
Xxxxxxx X. Xxxxxxxx 1997
Xxxxxxx X. Xxxx 1997
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT, made and entered into as of this day of
, 19__, by and between Mestek, Inc., a Pennsylvania
corporation (the "Company"), and ____________, an individual
residing in the State of _________________ (the "Executive"),
WITNESSETH THAT:
WHEREAS, the Executive is employed by the Company; and
WHEREAS, the Company recognizes the valuable services
heretofore performed and to be performed for it by the Executive;
and
WHEREAS, the Executive wishes to be assured that he will be entitled to
a certain amount of additional compensation upon attaining age 65 and that his
beneficiary will be entitled to a death benefit from and after the Executive's
death; and
WHEREAS, the parties hereto wish to provide the terms and conditions
upon which the Company shall pay such additional compensation to the Executive
or death benefit to his beneficiary after the Executive's death; and
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide deferred compensation
benefits for the Executive, a member of a select group of management or highly
compensated employees of the Company, for purposes of the Employee Retirement
Income Security Act of 1974, as amended;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises herein contained, the parties hereto agree as follows:
1. RETIREMENT BENEFIT
If the Executive continues in employment with the Company
until he attains age 65, the Company shall pay the Executive $2,500
each month, commencing with the month following the month in which the
Executive attains age 65, and payable for
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life. Monthly payments shall be made to the Executive whether or not he
continues in employment with the Company after he attains age 65.
Except as provided in Sections 2(a), 2(b) and 3(a) below, no benefits
shall be payable hereunder to or on behalf of the Executive if he
terminates employment with the Company for any reason before he attains
age 65. Except as provided in Section 3 below, no benefits shall be
payable hereunder to or on behalf of the Executive on or after his
death.
2. TERMINATION OF EMPLOYMENT
(a) In the event the Executive's employment with the Company
is terminated prior to attaining age 65 due to Disability (as such term
is defined below), the Company shall pay the Executive $2,500 each
month, commencing with the month in which the Executive attains age 65,
and payable for life. The monthly benefits described in this Section
2(a) are in addition to, and not in lieu of, any other benefits the
Executive may become entitled to as a result of his Disability
including, but not limited to, Social Security benefits or other
long-term disability benefits provided by the Company. "Disability"
means total, and presumably permanent, incapacity due to physical or
mental illness or accident which either (i) entitles the Executive to
benefits under the Company's long-term disability plan or (ii) entitles
the Executive to disability benefits under the Social Security Act as
in effect on his date of disability.
(b) In the event the Executive's employment with the Company
is terminated prior to attaining age 65 due to Involuntary Termination
without Cause or Termination for Good Reason (as such terms are defined
below), the Company shall pay the Executive $2,500 each month,
commencing with the month following the month in which the Executive
attains age 65, and payable for life. "Involuntary Termination without
Cause" means termination of employment by the Company for a reason
other than (i) the Executive's death, (ii) the Executive's Disability,
or (iii) Cause. "Cause" shall mean any conduct by the Executive
involving dishonesty or moral turpitude or any failure by the Executive
to comply with any material term of any employment, confidentiality or
other similar agreement with the Company to which the Executive is a
party, which
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conduct or failure is materially injurious to the Company,
monetarily or otherwise. "Termination for Good Reason" means
the Executive's voluntary termination of employment
(i) after a "change in control" (as defined in
(iii) below) of the Company because
(A) he has been assigned to a position of
lesser rank or status or to a location other
than Westfield, Massachusetts, without his
consent; or
(B) his annual base salary has been reduced;
or
(C) his benefits have been reduced (unless
such reduction is made uniformly in a plan
of general application to all of the
Company's eligible employees); or
(ii) because of a failure of the Company to comply
with any material provision of this Agreement or any
employment agreement with the Company to which the Executive
is a party which failure has not been cured within ten days
after written notice of such noncompliance has been given by
the Executive to the Company.
(iii) For purposes of this Agreement, a "change in
control" shall mean the purchase or other acquisition by any
person, entity or group of persons, within the meaning of
section 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under
the Act) of 30 percent or more of either the outstanding
shares of common stock or the combined voting power of the
Company's then outstanding voting securities entitled to vote
generally, or the approval by the stockholders of the Company
of a reorganization, merger, or consolidation, in each case,
with respect to which persons who were stockholders of the
Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter,
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own more than 50 percent of the combined voting power entitled
to vote generally in the election of directors of the
reorganized, merged or consolidated Company's then outstanding
securities, or a liquidation or dissolution of the Company or
the sale of all or substantially all of the Company's assets.
(c) Except as provided in Section 3 below, no benefits shall
be payable under this Section 2 to or on behalf of the Executive on or
after his death.
3. DEATH BENEFIT
(a) In the event the Executive dies before attaining age 65
and (i) while employed by the Company or (ii) after becoming eligible
for monthly benefits under Section 2, then the Company shall pay the
Executive's designated beneficiary $1,250 each month. In lieu of the
monthly benefit described in the preceding sentence, if the Executive
has a dependent child on the date of his death and if the Executive's
designated beneficiary includes either his surviving spouse or a
dependent child, then the Company shall pay such designated beneficiary
$2,500 each month until the month in which the youngest dependent child
attains age 22, and, beginning with the month in which the youngest
dependent child attains age 22, the Company shall pay such designated
beneficiary $1,250 each month. If the Executive's designated
beneficiary is entitled to a death benefit under this Section 3(a),
monthly payments shall be made to the designated beneficiary commencing
with the month following the month in which the Executive dies until
the earlier to occur of the date the designated beneficiary has
received 120 monthly payments or the date of the designated
beneficiary's death. Notwithstanding the preceding sentence, if the
Executive's designated beneficiary is entitled to a death benefit under
this Section 3(a) because the Executive dies after becoming eligible
for monthly benefits under Section 2(a), monthly payments shall be made
to the designated beneficiary commencing with the month in which the
Executive dies. In no event shall the designated beneficiary of the
Executive receive more than 120 monthly payments hereunder. For
purposes of this Section 3, "dependent child" means a natural or
adopted child of the Executive who at the time of
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determination has not attained age 22 and who survives the
Executive.
(b) In the event the Executive dies after attaining age 65 and
while receiving monthly payments under Section 1 or Section 2 above,
the Company shall pay his designated beneficiary a single sum amount
equal to the present value of the monthly payments that would have been
paid to the Executive under Section 1 or Section 2 above from and after
the date of his death if he had survived until he reached age 84 and
then died immediately thereafter. For purposes of the preceding
sentence, present value shall be determined using a 5% discount factor.
(c) The Executive's "designated beneficiary" means the
individual or individuals designated by the Executive in a written
instrument filed with the Company to receive any death benefit which
shall be payable under this Section 3. The Executive may change such
designation of beneficiary from time to time by written notice to the
Company.
4. NO TRUST CREATED
Nothing contained in this Agreement, and no action taken
pursuant to its provisions by either party hereto, shall create, nor be
construed to create, a trust of any kind or a fiduciary relationship
between the Company and the Executive, his designated beneficiary, or
any other person.
5. BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS:
UNSECURED GENERAL CREDITOR STATUS OF EXECUTIVE
The payments to the Executive, or his designated beneficiary,
hereunder shall be made from assets which shall continue, for all
purposes, to be a part of the general, unrestricted assets of the
Company; no person shall have nor acquire any interest in any such
assets by virtue of the provisions of this Agreement. The Company's
obligation hereunder shall be an unfunded and unsecured promise to pay
money in the future. To the extent that the Executive or his designated
beneficiary acquires a right to receive payments from the Company under
the provisions hereof, such right shall be no greater than the right of
any unsecured general creditor
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of the Company; no such person shall have nor acquire any legal or
equitable right, interest or claim in or to any property or assets of
the Company. The preceding provisions of this Section 5 shall not,
however, prevent the Company from purchasing an annuity contract or
insurance contract to provide any benefits hereunder and from expressly
transferring in writing such annuity contract or insurance contract to
Executive or his designated beneficiary, with his or his designated
beneficiary's consent, whichever is applicable, in exchange for such
person's rights under this Agreement and in full satisfaction thereof.
6. CLAIMS PROCEDURE
(a) If the Executive or his designated beneficiary believes
that such individual is being denied a benefit to which such individual
is entitled under this Agreement (hereinafter referred to as a
"Claimant"), the Claimant may file a written request for such benefit
with the Company, setting forth his claim. The request must be
addressed to the Chairman of the Board of Directors of the Company at
its then principal place of business.
(b) Upon receipt of a claim, the Company shall advise the
Claimant that a reply will be forthcoming within ninety days and shall,
in fact, deliver such reply within such period. The Company may,
however, extend the reply period for an additional ninety days for
reasonable cause. If the claim is denied in whole or in part, the
Company shall adopt a written opinion setting forth:
(i) The specific reason or reasons for such denial;
(ii) The specific reference to pertinent provisions
of the Agreement on which such denial is based;
(iii) A description of any additional material or
information necessary for the Claimant to perfect his claim
and an explanation why such material or such information is
necessary;
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(iv) Appropriate information as to the steps to be
taken if the Claimant wishes to submit the claim for review;
and
(v) The time limits for requesting a review under
Section 6(c) and for review under Section 6(d) hereof.
(c) Within sixty days after the receipt by the Claimant of the
written opinion described above, the Claimant may request in writing
that the Company review its determination. Such request must be
addressed to the Chairman of the Board of Directors of the Company, at
its then principal place of business. The Claimant or his duly
authorized representative may, but need not, review the pertinent
documents and submit issues and comments in writing for consideration
by the Company. If the Claimant does not request a review of the
Company's determination within such sixty day period, he shall be
barred and estopped from challenging the Company's determination.
(d) Within sixty days after the Company's receipt of a request
for review, it will review its determination. After considering all
materials presented by the Claimant, the Company will render a written
opinion setting forth the specific reasons for the decision and
containing specific references to the pertinent provisions of the
Agreement on which the decision is based. If special circumstances
require that the sixty day time period be extended, the Company will so
notify the Claimant and will render the decision as soon as possible,
but no later than one hundred twenty (120) days after receipt of the
request for review.
7. NON-ASSIGNABILITY OF BENEFITS
Neither the Executive, nor his designated beneficiary, nor any
other person shall have any power or right to transfer, assign,
anticipate, hypothecate or otherwise encumber any part or all of the
amounts payable hereunder, which are expressly declared to be
non-assignable and non-transferable. Any such attempted assignment or
transfer shall be void and shall terminate this Agreement; the Company
shall thereupon have no further liability hereunder. No amount payable
hereunder shall, prior to actual payment thereof, be
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subject to seizure by any creditor of the Executive or his designated
beneficiary for the payment of any debt, judgment or other obligation,
by a proceeding at law or in equity, nor be transferable by operation
of law in the event of the bankruptcy, insolvency or death of the
Executive, or his designated beneficiary.
8. AMENDMENT
This Agreement may not be amended, altered or modified, except
by a written instrument signed by the parties hereto or their
respective successors, and may not be otherwise terminated except as
provided herein.
9. BINDING EFFECT
This Agreement shall be binding upon the Company and its
successors and assigns, and the Executive, his successors, heirs,
executors, legal representatives, administrators and beneficiaries.
10. NOTICES
Any notice, required or permitted to be given under the
provisions of this Agreement shall be in writing, and shall be signed
by the party giving or making the same. If such notice is mailed to a
party hereto, it shall be sent by United States certified mail, postage
prepaid, addressed to such party's last known address as shown on the
records of the Company or, in the case of the Company, its then
principal place of business. The date of such mailing shall be deemed
the date of notice.
11. GOVERNING LAW
This Agreement and the rights of the parties hereunder, shall
be governed by and construed in accordance with the laws of the State
of Massachusetts.
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12. WITHHOLDING
The Company may withhold from any payments required to be made
under this Agreement, such amounts which must be withheld pursuant to
applicable federal, state or local tax or similar laws or amounts to
pay the applicable Executive portions of the cost of any retiree health
or life insurance programs for which the Executive or his designated
beneficiary is eligible.
13. FACILITY OF PAYMENT
In the event the Executive or his designated beneficiary is
declared incompetent and a conservator or other person legally charged
with the care of their person or of their estate is appointed, any
benefits under this Agreement to which the Executive or his designated
beneficiary is entitled shall be paid to such conservator or other
person legally charged with the care of their person or their estate.
Except as provided in the preceding sentence, when the Company in its
sole discretion determines that the Executive or his designated
beneficiary is unable to manage his financial affairs, the Company may
make payments under this Agreement to any person for the benefit of the
Executive or his designated beneficiary.
14. INFORMATION
The Executive or his designated beneficiary shall keep the
Company informed of his current address. The Company shall not be
obligated to search for the whereabouts of any person.
15. SEVERABILITY
If, for any reason, any provision of this Agreement is held
invalid, such invalidity shall not affect any other provision of this
Agreement not held so invalid, and each other provision shall to the
full extent consistent with law continue in full force and effect. If
any provision of this Agreement shall be held invalid in part, such
invalidity shall in no way affect the rest of such provision not held
so invalid and the rest of such provision, together with all
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other provisions of this Agreement, shall to the full extent consistent
with law continue in full force and effect.
16. ENTIRETY OF AGREEMENT
This Agreement constitutes the entirety of the agreement
between the Executive and the Company concerning the benefits provided
hereunder.
17. FINAL DECISIONS
The Company, in its sole discretion, shall have full power to
construe, interpret and administer this Agreement and to make each
determination provided for in this Agreement. All determinations made
by the Company shall be conclusive upon the Executive and his
designated beneficiary.
18. NO REDUCTION
This Agreement shall not diminish or reduce any benefits
payable to or on behalf of Executive under the Mestek, Inc.
Retirement Savings Plan. This Agreement and the benefits, if
any, provided hereunder shall be in addition to, and not in
lieu of or in derogation of, benefits provided under the
Mestek, Inc. Retirement Savings Plan.
19. NO GUARANTEE OF EMPLOYMENT
Nothing contained herein shall be construed as a contract of
employment or deemed to give the Executive the right to be retained in
the employ of the Company or to interfere with the rights of the
Company to discharge the Executive at any time, with or without cause.
20. GENDER AND NUMBER
The masculine pronoun wherever used shall include the
feminine. Wherever any words are used herein in the singular, they
shall be construed as though they were also used in the plural in all
cases where they shall so apply.
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21. HEADINGS
The headings of sections of this Agreement are for convenience
of reference only and in case of any conflict the text of this
Agreement, rather than such headings, shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in
duplicate, as of the day and year first above written.
MESTEK, INC.
By
Its
ATTEST:
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