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EXHIBIT 10.1(a)
SUPPLEMENTAL EXECUTIVE
RETIREMENT AGREEMENT
THIS AGREEMENT is made as of this 19th day of September, 1996 between PLEXUS
CORP., a Wisconsin corporation (the "Company"), and XXXXX XXXXXXXXXX (the
"Employee").
WHEREAS, the Employee is a key executive officer of the Company and the
Company wishes to continue to receive the benefit of the Employee's knowledge
and experience and is willing to offer the Employee certain deferred
composition arrangements as set forth herein as an inducement for continued
service.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1 "Account" means the bookkeeping reserve account for the Employee which
shall be established by the Company solely as a device for determining the
amounts which may become payable to or on behalf of the Employee hereunder.
The Company shall keep a record in the Account of the current fair values of
all contributions and any Policy or other property or funds held therein from
time to time. Such Account shall not constitute or be treated as a trust fund
of any kind, it being expressly provided that the amounts credited to such
Account shall at all time be and remain the sole property of the Company. The
Employee shall have no proprietary rights of any nature whatsoever with respect
thereto but shall simply be an unsecured creditor of the Company, unless and
until such time as a payment under this Agreement is made to or on behalf of
the Employee.
1.2 "Annual Contribution" means the sum of $193,599.98.
1.3 "Beneficiary" means any one or more primary or secondary beneficiaries
designated in writing by the Employee on a form provided by the Company to
receive any benefits which may become payable under this Agreement on or after
the Employee's death. The Employee shall have the right to name, change or
revoke his designation of Beneficiary on a form provided by the Company. The
designation on file with the Company at the time of the Employee's death shall
be controlling. Should the Employee fail to make a valid Beneficiary
designation or leave no named Beneficiary surviving, any benefits due shall be
paid to the Employee's spouse, if living; or if not living, then to the
Employee's estate.
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1.4 "Board" means the Board of Directors of the Company.
1.5 "Cause" in connection with any termination of the Employee's employment
by the Company means (i) the willful and continued failure of the Employee to
substantially perform the duties of his position with the Company (other than
as a result of physical or mental illness or injury), after the Board has given
written notice to the Employee demanding substantial performance, which notice
specifically identifies the manner in which the Board believes the Employee has
not substantially performed such duties, (ii) commission or conviction of any
felony, misdemeanor or other offense, the circumstance of which substantially
relate to the circumstances of the Employee's job, or (iii) the willful
engaging by the Employee in illegal or gross misconduct resulting in a
demonstrably material injury to the Company. No act or failure to act on the
Employee's part shall be considered to be "willful" unless it is done, or
permitted to be done, by the Employee in bad faith or without reasonable belief
that the Employee's action or omission was in the best interests of the
Company.
1.6 "Change of Control" with respect to the Company means the occurrence of
any one of the following events, as a result of one transaction or a series of
transaction:
(a) any "person (as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding the Company, its
affiliates as of the date of this Agreement, and any qualified or
non-qualified plan maintained by the Company or its affiliates),
becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated
under such Act) of securities of the Company representing more than 25%
of the combined voting power of the Company's then outstanding voting
securities;
(b) individuals who constitute a majority of the Board immediately
prior to a contested election for positions in the Board cease to
constitute a majority as a result of such contested election;
(c) the Company is combined with or acquired by (by merger, share
exchange, consolidation, tender offer or otherwise) another corporation
or business entity and a result thereof, less than 67% of the
outstanding securities of or voting power in the surviving or resulting
corporation or other business entity is owned in the aggregate by the
former shareholders of the Company;
(d) the Company sells, leases, or otherwise transfers all or
substantially all of its properties or assets
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not in the ordinary course of business to another person or entity;
(e) the Board determines in its sole and absolute discretion either that
there has been a change in control of the Company or that such change in
control is imminent; or
(f) the outstanding voting securities of the Company are no longer
listed on either the NASDAQ National Market System, the New York Stock
Exchange or the American Stock Exchange or the Company is no longer
registered under Section 12 of the Securities Exchange Act of 1934, as
amended.
1.7 "Disability" means the absence of the Employee from the Employee's
duties with the Company on a full-time basis for 180 consecutive business days
as a result of incapacity due to mental or physical illness or accident which
is determined to be of continued and indefinite duration and to render the
Employee unable to continue in the regular duties of his job. When used in the
context of the Employee's duties under a consulting agreement entered into
after employment has ceased, the term means such incapacity due to mental
illness or accident which is determined to be of continued and indefinite
duration and to render the former Employee unable to perform his duties under
the consulting agreement. If necessary, such determination shall be made by a
physician selected by the Employee or his legal representatives and acceptable
to the Company, with the Company's agreement as to acceptability not to be
withheld unreasonably.
1.8 "Good Reason" in connection with any termination of the Employee's
employment with the Company means any termination because of Disability, any
termination at or after attainment of age 55 and completion of 10 years of
service with the Company, or any termination at any time on or after the
occurrence of a Change of Control. The term also means in connection with any
termination by the Employee of his employment with the Company (i) the
Employee's duties and responsibilities are materially and adversely diminished
in comparison to the duties and responsibilities enjoyed by him on the date
this Agreement is signed, (ii) any reduction of the Employee's base salary
below the level in effect on the date this Agreement is signed, without the
consent of the Employee, (iii) any request by the Company that the Employee's
services be rendered primarily at a location or locations outside Winnebago
County, Wisconsin, or (iv) any material breach of this Agreement shall occur
that either is not taken by the Company in good faith or is not remedied by the
Company promptly after receipt of written notice thereof from the Employee.
The Employee may terminate his employment with the Company for Good Reason by
giving the Company written notice of termination setting forth the specific
conduct of the Company that constitutes Good Reason. Any termination of
employment
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covered by this paragraph shall be referred to as a "Good Reason Termination."
1.9 "Policy" means any policy or policies of life insurance which the
Company may purchase on the life of the Employee and hold in the Account.
While any such Policy may be used as a device for measuring the amounts which
may become payable to or on behalf of the Employee under this Agreement, the
Company (or the trustee of any grantor Trust established by the Company) shall
be the applicant, owner and sole beneficiary of the Policy, with all rights and
all incidents of ownership. The Employee shall have no proprietary rights of
any nature whatsoever with respect to the Policy, unless and until otherwise
provided under this Agreement.
1.10 "Trust" means such grantor trust (a "rabbi trust") as the Company shall
establish to serve as a vehicle to hold any Policy or contributions held in the
Account as the Company may choose to make in connection with this Agreement,
but the Trust shall be designed so that all assets therein are subject to the
claims of the Company or any of its affiliates which have used such rabbi trust
in the event of insolvency, consistent with the provision of Revenue Procedure
92-64 issued by the Internal Revenue Service. Notwithstanding the existence of
such a rabbi trust, this Agreement shall remain an unfunded agreement, with the
Employee's rights to benefits hereunder being those of an unsecured creditor.
SECTION 2
CONTRIBUTIONS TO ACCOUNT
2.1 Contributions. The Company will credit annually to the Employee's
Account an amount equal to the Annual Contribution, starting on the date hereof
and continuing on the anniversary thereof thereafter for the next five years,
provided that the Employee is continuing in employ of the Company on each such
anniversary date or has entered into a consulting agreement with the Company in
the form attached hereto as Exhibit A and made a part hereof and continues in
the absence of Disability to comply with the terms thereof.
2.2 Credits to Account. Any amounts credited to the Employee's Account
shall be invested in a Policy which shall be held in the Trust.
2.3 Special Contribution in the Event of a Change of Control. Upon the
occurrence of a Change of Control, the Company shall, as soon as possible, but
in no event later than thirty (30) days following the Change of Control, make a
contribution to the Trust and credit the Account in a lump sum amount equal to
the present value of all Annual Contributions that would have been made under
the provisions of paragraph 2.1
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above, discounted at 5%, and the Company shall have no further contribution
obligations thereafter.
SECTION 3
PAYMENT OF SUPPLEMENTAL RETIREMENT BENEFITS
3.1 Retirement or Termination Other Than For Cause At or After 65. Upon the
Employee's retirement or termination other than for Cause at or after
attainment of age 65, the Company shall pay the Employee fifteen (15) annual
installments, with the first installment to be made within sixty (60) days of
the date of such retirement or termination, in an annual amount equal to the
sum of the following:
(a) an amount equal to one-fifteenth (1/15) of the cash values in each
Policy as of the date the Employee retires or terminates, plus
(b) an amount equal to the increase, if any, in the cash values in each
Policy, over those in the immediately prior Policy year.
3.2 Death Before Employee has Begun Receiving Payments. Should the Employee
die while in the employ of the Company before he has begun to receive the
payments provided in under paragraph 3.1 above, the Company shall make a lump
sum payment to the Employee's Beneficiary in an amount equal to the death
proceeds then payable under each Policy.
3.3 Death After the Employee has Begun Receiving Payments. Should the
Employee die after he has begun to receive the payments provided in under
paragraph 3.1 above, but before all fifteen annual payments have been made, the
Company shall make a lump sum payment to the Employee's Beneficiary in an
amount equal to the death proceeds then payable under each Policy, minus the
total amount of annual payments previously made to the Employee.
3.4 Termination of Employment by the Company Other Than for Cause or Good
Reason Termination. Should the Company terminate the Employee's employment,
other than for Cause or death, or if a Good Reason Termination occurs, and
provided that the Employee continues in the absence of Disability to comply
with the terms of the consulting agreement attached hereto as Exhibit A and
made a part hereof, the Company shall continue to credit the Employee's
Account annually with an amount equal to the Annual Contribution for the number
of years specified in paragraph 2.1 above, just as if the Employee had remained
employed pursuant to this Agreement until the end of such period, or until the
Employee's death, if earlier. Thereafter, if the Employee survives to age 65,
the payments called for by paragraph 3.1 shall be made, just as if the Employee
had continued in the employ of the Company and had retired upon reaching age
65.
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Paragraph 3.3 shall apply should the Employee die after he has begun to receive
such payments, but before all of the same have been made. If the Employee does
not survive to age 65 but dies before he has begun to receive the payments
provided for in paragraph 3.1, paragraph 3.2 shall apply. If the Employee
fails in the absence of Disability to comply with the terms of the consulting
agreement attached as Exhibit A, the provisions of Paragraph 3.5 below shall
apply, as if the Employee had voluntarily terminated other than for Good Reason
prior to the commencement of payments under this Agreement.
3.5 Termination of Employment for Cause by the Company or By the Employee
Other Than for Good Reason. Notwithstanding any other provision of this
Agreement, should the Company terminate the Employee's employment for Cause at
any time prior to the occurrence of a Change of Control and prior to the
commencement of payments under this Agreement, the Company shall have no
obligation to make any payments whatsoever under this Agreement to or on behalf
of the Employee. Should the Employee voluntarily terminate other than for Good
Reason prior to the commencement of payments under this Agreement, the Employee
shall become entitled to receive fifteen (15) annual installment payments from
the Company, with the first installment to be made within sixty (60) days of
the date such termination, in annual amounts calculated in the same manner as
provided in paragraph 3.1 above. However, the Company in its sole discretion
may determine to accelerate such payments into a single lump sum equal to the
total of the then current fair value held in the Account and may make such
payment either in cash or in kind (including a distribution of any Policy held
in the Account), as the Company in its sole discretion determines. Paragraph
3.3 shall apply should the Employee die after he has begun to receive any
installments payments, but before all of the same have been made.
3.6 Payment of Account Under Certain Circumstances. If at any time on or
after the occurrence of a Change of Control, either the Company's Consolidated
Tangible Net Worth declines below thirty-five million dollars ($35,000,000.00)
or the ratio of the Company's Consolidated Total Debt to the Company's
Consolidated Tangible Net Worth becomes greater than 2.5 to 1, then the
Employee (or former Employee if he is no longer in the Company's employ but is
either receiving or entitled to receive payment hereunder at some future date)
shall become entitled to receive an immediate payment from the Company of an
amount equal to the total of the then current fair value held in the Account,
in full settlement of any and all obligations of the Company hereunder. The
Company may make such payment either in cash or in kind (including a
distribution of any Policy held in the Account), as the Company in its sole
discretion determines. For purposes of this paragraph, the Company's
"Consolidated Tangible Net Worth" means the excess, if any, of all consolidated
assets of the Company and all subsidiaries (excluding goodwill patents,
trademarks, tradenames, copyrights and other assets properly
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classified as intangible assets) over all consolidated liabilities of the
Company and all subsidiaries determined in accordance with generally accepted
accounting principles; and the Company's "Consolidated Total Debt" means the
total of all consolidated liabilities of the Company and all subsidiaries which
would appear as liabilities on a consolidated balance sheet of the Company and
all subsidiaries in accordance with generally accepted accounting principles.
3.7 Payment of Account on Company Breach. Should the Company fail to make
any payments when due hereunder to the Employee or his Beneficiary or otherwise
materially breach any provision of this Agreement and such failure or breach
continue for a period of ten (10) days after written notice and demand for
payment or cure by the Employee (or Beneficiary, as the case may be) is
received by the Company, then the Employee (or Beneficiary) shall become
entitled, without prejudice to any other right or remedy the Employee (or
Beneficiary) may have for breach of this Agreement, to receive an immediate
payment from the Company of an amount equal to the total of the then current
fair value held in the Account. The Company, may make such payment either in
cash or in kind (including a distribution of any Policy held in Account), as
the Company in its sole discretion determines.
SECTION 4
CLAIMS PROCEDURE
4.1 Claim Review. If the Employee or his Beneficiary (a "Claimant") is
denied all or a portion of a benefit under this Agreement, he or she may file a
written claim for benefits with the Company. The Company shall review the
claim and notify the Claimant of the Company's decision within sixty (60) days
of receipt of such claim, unless the Claimant receives written notice prior to
the end of the sixty (60) day period stating that special circumstances require
an extension of the time for decision. The Company's decision shall be in
writing, sent by mail to the Claimant's last known address, and if a denial of
the claim, must contain the specific reasons for the denial, reference to
pertinent provisions of this Agreement on which the denial is based, a
designation of any additional material necessary to perfect the claim, and an
explanation of the claim review procedure.
4.2 Appeal Procedure to the Board. A Claimant is entitled to request a
review of any denial by the full Board by written request to the Chair of the
Board within 60 days of receipt of the denial. Absent a request for review
within the 60-day period, the claim will be deemed to be conclusively denied.
The Board shall afford the Claimant the opportunity to review all pertinent
documents and submit issues and comments in writing and shall render a review
decision in writing, all within sixty
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(60) days after receipt of a request for review (provided that, in special
circumstances the Board may extend the time for decision by not more than sixty
(60) days upon written notice to the Claimant.) The Board's review decision
shall contain specific reasons for the decision and reference to the pertinent
provisions of this Agreement.
4.3 Attorney's Fees. The Company agrees to pay, as incurred, to the fullest
extent permitted by law, all legal fees and expenses that the Employee may
reasonably incur as a result of any contest (regardless of the outcome) by the
Company, the Employee or others of the validity or enforceability of, or
liability under, or otherwise involving any provision of this Agreement.
SECTION 5
MISCELLANEOUS
5.1 Non-Assignability. This Agreement is personal to the Employee and,
without the prior written consent of the Company, shall not be assignable by
the Employee otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be binding upon the Company
and its successors and assigns and shall also be enforceable by the Employee's
legal representatives.
5.2 Successors. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
both the Company as defined above and any such successor that assumes and
agrees to perform this Agreement, by operation of law or otherwise.
5.3 Taxes. No later than the date as of which an amount first becomes
includible in the income of the Employee for purposes of employment or income
taxes, the Employee agrees to pay to the Company, or make satisfactory
arrangements with the Company regarding the payment of any federal, state or
other taxes of any kind required to be withheld with respect to such amount.
5.4 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Wisconsin, without reference to
principles of conflict of laws, to the extent preempted by federal law. The
captions of this Agreement are not part of the provisions hereof and shall have
no force or effect. This Agreement may not be amended or modified
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except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
5.5 Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by hand delivery to the other party or
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Employee: Xxxxx Xxxxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
If to the Company: Plexus Corp.
Attn: Corporate Secretary
00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000-0000
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph. Notices and communications shall be effective
when actually received by the addressee.
5.6 Construction. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law. Nothing contained in this Agreement shall give the
Employee the right to be retained in the employment of the Company or affect
the right of the Company to dismiss the Employee.
5.7 CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
paragraph 5.7) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or
any interest or penalties are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest
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and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of paragraph 5.7 (c), all determinations
required to be made under this paragraph 5.7, including whether and when a
Gross-Up Payment is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination, shall be made by
such certified public accounting firm as may be designated by the Employee (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Employee within 15 business days of the receipt of notice
from the Employee that there has been a Payment, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant
to this paragraph 5.7, shall be paid by the Company to the Employee within five
days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Employee, it shall furnish
the Employee with a written opinion that failure to report the Excise Tax on
the Employee's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and the Employee. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to paragraph 5.7 (c) and the Employee thereafter is required
to make payment of any Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Employee.
(c) The Employee shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Employee is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Employee
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such a claim is
due). If the Company notifies the Employee in writing prior to the expiration
of such period that it desires to contest such claim, the Employee shall:
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(i) Give the Company any information reasonably requested by the
Company relating to such claim,
(ii) Take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim
by an attorney reasonably selected by the Company,
(iii) Cooperate with the Company in good faith in order to effectively
contest such claim, and
(iv) Permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this paragraph 5.7 (c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Employee agrees
to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs the Employee to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to the Employee, on an interest-free basis
and shall indemnify and hold the Employee harmless, on an after-tax basis, from
any Excise Tax or income tax including interest or penalties with respect to
any imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Employee shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount advanced by the
Company pursuant to paragraph 5.7 (c), the Employee becomes entitled to receive
any refund with respect to such claim, the Employee shall (subject to the
Company's
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complying with the requirements of paragraph 5.7 (c) ) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by the Employee
of an amount advanced by the Company pursuant to paragraph 5.7 (c), a
determination is made that the Employee shall not be entitled to any refund
with respect to such claim and the Company does not notify the Employee in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
5.8 Amendment; Entire Agreement. This Agreement may be amended by a written
instrument signed by both parties. This Agreement contains the entire
agreement between the parties on the subjects covered and replaces all prior
writings, proposals, specifications or other oral or written materials relating
thereto.
IN WITNESS WHEREOF, the Employee has signed this Agreement and, pursuant to
the authorization of the Board, the Company has caused this Agreement to be
signed, all as of the date first set forth above.
/S/ XXXXX XXXXXXXXXX
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XXXXX XXXXXXXXXX
PLEXUS CORP.
BY: /S/ XXX. X. XXXXXXX
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ATTEST: /S/ XXXXX XXXXXX
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