EXHIBIT 10-H-2
XXXX X. XXXXX
SUPPLEMENTAL BENEFIT COMPENSATION AGREEMENT
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This Agreement, effective as of December 23, 1999, by and between
Hartmarx Corporation ("Company"), and Xxxx X. Xxxxx, executive employee of
Company or a subsidiary of Company ("Employee"),
WITNESSETH:
WHEREAS, Company wishes to provide to Employee retirement benefits
that cannot be provided under the Hartmarx Retirement Income Plan maintained by
Company (the "RIP") because of limitations that apply to the RIP under Sections
415 and 401(a)(17) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, in order to allow Employee to accumulate personal assets to
be used for retirement which, when taken together with Employee's benefits under
the RIP, provide a benefit to Employee at retirement equivalent (on an after-tax
basis) to what Employee would have received under the RIP (on an after-tax
basis) but for said limitations under the Code, Company and Employee desire to
enter into this Agreement pursuant to which: (i) Employee directs Company to
deposit certain cash compensation payments for Employee directly into a
segregated account established on behalf of Employee (as described in paragraph
5 below); and (ii) Company will pay certain tax gross up payments;
NOW, THEREFORE, in consideration of their mutual undertakings, Company
and Employee agree as follows:
1. Deposits to Segregated Account. As of the last day of each
calendar year, beginning with the effective date, the Plan Administration
Committee of the Company (the "Committee") shall determine the Present Value of
Employee's After-Tax Supplemental Benefits (as defined below). If the Present
Value of Employee's After-Tax Supplemental Benefits is more than the Adjusted
Market Value of assets held in Employee's segregated account projected as of the
date of determination, Company will deposit the difference in the segregated
account on or before the last day of that calendar year. The amount of the
deposit made by Company to the segregated account shall be treated as cash
compensation taxable to Employee in the year deposited to the account.
2. Funding Assumptions. The factors listed below shall be used in the
determination of deposits to Employee's segregated account as provided under
paragraph 1 above.
(a) Employee's "After-Tax Supplemental Benefit" determined as of the
last day of any calendar year shall mean: (i) the difference
between (A) the periodic benefit that would be payable under the
RIP to the Employee (or his beneficiary) upon Employee's
retirement at age 65
or, if Employee has attained age 65, Employee's retirement as at
the date of determination (assuming Employee terminated service
on the date of determination and accrued no further benefits
under the RIP) if the limitations on benefits under the Code had
not applied to the RIP, and (B) the periodic benefit payable to
the Employee under the RIP after application of those
limitations; less (ii) Applicable Income Taxes (as defined below)
related to such difference determined under (i) above.
(b) The "Present Value" of Employee's After-Tax Supplemental Benefits
shall be determined using reasonable actuarial assumptions as
deter mined from time to time by the Committee for this purpose.
Actuarial assumptions applied for similar purposes under the RIP
are hereby deemed reasonable for purposes of this Agreement.
(c) "Applicable Income Taxes" shall mean federal (including Federal
Insurance Contributions Act ("FICA"), if applicable), state and
local income taxes (using, in each case, the nominal tax rate in
effect for the highest individual income tax bracket for the
calendar year in which such taxes are determined, rather than the
highest effective tax bracket rate after considering the phase-
out of lower bracket rates, personal exemptions, deductions, tax
preference items, etc.) that would have been payable by Employee
if the Company paid the Employee the amount described in
subparagraph 2(a)(i) above in the calendar year with respect to
which the amount is deposited, provided, that federal income
taxes shall be considered net of state and local income tax
benefits.
(d) The "Adjusted Market Value" of assets held in the segregated
account shall mean the market value of assets in the segregated
account on the date of determination, plus the sum of the amount
of any withdrawals or distributions from the segregated account
and Applicable Interest. "Applicable Interest" shall mean the
interest that would have been credited to such withdrawals or
distributions each year (assuming such amounts had not been
distributed) at a rate equal to the average of the six-month
treasury xxxx rates for such year, or such other reasonable
interest rate assumptions as the Committee in its discretion may
adopt from time to time.
3. Special Rules for Initial Funding Contributions.
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Notwithstanding the requirements of paragraph 2 above, and in
accordance with the Company's intent to spread the first deposit over a five-
year period, in the first year in which deposits
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are required to be made by the Company to the Employee's segregated account
under this Agreement and for each of the three subsequent calendar years,
Company shall reduce the deposit otherwise required by the following
percentages:
Year One -- 80%
Year Two -- 75%
Year Three -- 66 2/3%
Year Four -- 50%.
For each calendar year that this Agreement is in effect after the fourth
calendar year, the Company shall deposit the full amount described in paragraph
1, above. In the event of:
(i) a change in control (as defined in the most recent severance
agreement entered into by the Employee and the Company
("Severance Agreement")) of the ownership of the Company, along
with any attempt by the Company to discontinue or delay deposit
of the installment payments described herein, and accompanied by
the reasonable written request by the Employee for acceleration
of funding by the Company; or
(ii) the death of the Employee or the discharge by the Company of
Employee from the employment of Company or a subsidiary of
Company without cause (as defined in the most recent employment
agreement entered into by the Employee and the Company
("Employment Agreement"));
prior to the end of the five-year period described above, the percentage
reductions described in the first sentence of this paragraph 3 shall not apply,
and in the event of a change in control, discontinuance or delay of installment
payments by the Company and written request by the Employee for acceleration of
funding, all such payments must be deposited by the Company into the Employee's
segregated account within ten (10) days of such discontinuance or delay and
receipt of Employee's reasonable request by the Company. In the event of a
voluntary termination of the Employee's employment initiated by the Employee
(regardless of whether such termination is considered for good reason under the
Employment Agreement) prior to the expiration of the five-year period, the
Company shall continue to make the deposits in the form and at the times
described in the first sentence of this paragraph 3 during the remainder of the
five-year period. In the event the Company terminates this Agreement prior to
the expiration of the five-year period, the Company shall continue to make the
deposits in the form and at the times described in the first sentence of this
paragraph 3 during the remainder of the five-year period; provided, however,
that with respect to the calculation of the funding amount described in
subparagraph 2(a), the Employee shall be deemed to have terminated employment
with the Company as of the date the Company terminates this Agreement.
Notwithstanding the foregoing, in the event that (i) the Employee is discharged
by the Company for cause as defined in the Employment Agreement, (ii) the
Employee breaches the confidentiality and nondisparagement provisions of
paragraph seven of the Employment Agreement, or (iii) the Employee withdraws
funds from the account prior to termination of employment with the
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Company, no further deposits shall be made to the Employee's segregated account
by the Company under this Agreement.
4. Tax Gross Up Payments to Employee. In addition to any cash payment
made under paragraph 1 above, Company shall make a tax gross up payment to
Employee for each calendar year during the term of this Agreement that Company
makes a cash deposit into Employee's segregated account or there is a balance in
Employee's segregated account. The tax gross up payment shall approximate:
(a) the amount necessary to compensate Employee for the net increase
in Employee's federal (including FICA), state and local income
taxes as a result of the inclusion in his or her taxable income
of the income earned on Employee's segregated account as well as
any deposits made under paragraph 1 for that year; plus
(b) an amount necessary to compensate Employee for the net increase
in the taxes described in (a) above as a result of the inclusion
in his or her taxable income of any payment made pursuant to this
paragraph 4.
Payment of the tax gross up to Employee shall be made by Company directly from
its general corporate assets. Payment of the tax gross up to Employee for any
deposit made to the segregated account pursuant to paragraph 1 shall be made on
or before the last day of the calendar year and payment of the tax gross up to
Employee for any income earned on the segregated account for the year shall be
made as soon as practicable after the end of the calendar year.
5. Establishment of Segregated Account. Employee agrees to establish
a segregated account in the form of a grantor trust between Employee and the
Northern Trust Company in the form attached to this Agreement, or a savings
account or such other form of segregated account generally available to the
public from a financial institution as the Committee considers acceptable (the
name and location of which institution shall be indicated in an attachment
hereto), for the purpose of receiving and holding the cash deposits made
pursuant to paragraph 1 above and any interest which is earned on the
outstanding balances in the segregated account. Employee may elect to transfer
all of the assets of his segregated account to another acceptable form of
segregated account provided he gives the Committee 60 days advance written
notice of such transfer.
6. Termination of Agreement. This Agreement shall terminate after
the earliest to occur of:
(a) the date Employee dies,
(b) the date Employee withdraws any assets from the segregated
account while employed by the Company,
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(c) the date Employee terminates employment for any reason (subject
to the Company's obligation to make the remainder of its funding
contributions during the five-year funding period described in,
and subject to the terms and conditions of, paragraph 3), and
(d) the date the Company notifies Employee that it has terminated the
Agreement.
Except as provided in the following sentence and in the special five-year
funding rules described in paragraph 3, upon termination of this Agreement
Company shall have no obligation to make any further cash payments or tax gross
up payments to Employee. If termination of this Agreement occurs under (a), (c)
or (d) above, and subject to the special five-year funding rules described in
paragraph 3, Company shall make a final deposit into Employee's segregated
account equal to the difference (if any) between the Adjusted Market Value of
the assets in Employee's segregated account as of the date payment is to be made
and the Present Value of Employee's After-Tax Supplemental Benefits. This final
deposit shall be made no later than the last day of the calendar year in which
this Agreement terminates, or as soon as reasonably practicable thereafter, but
in no event later than 30 days after the date of termination of this Agreement.
For purposes of this final deposit, Employee's After-Tax Supplemental Benefits
shall be determined as of the date the final deposit is to be made.
7. Administration of Agreement. This Agreement shall be administered
by the Committee. The Committee may delegate administrative authority to
officers of Company, including the power to adopt administrative rules and
regulations; provided, however, that the Committee's interpretation and
construction of any provisions of this Agreement shall be binding and conclusive
on the parties hereto.
8. Amendment of Agreement. With the mutual consent of the parties
hereto, this Agreement may be amended from time to time.
IN WITNESS WHEREOF, Company and Employee have executed this Agreement
on the day and year first above written.
HARTMARX CORPORATION
By
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/s/ XXXX X. XXXXX
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[signature]
Soc. Sec. No.
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