Exhibit 10.L
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
This Supplemental Executive Retirement Agreement ("Agreement") made and
entered into by and between UNOVA, Inc., a Delaware corporation (the "Company")
and Xxxxx X. Xxxxx, ("Executive").
WHEREAS, the Executive is presently employed by the Company as its Chairman
and Chief Executive Officer; and
WHEREAS, the Executive was previously employed by Western Atlas Inc., which
corporation previously owned the Company and distributed its shares to the
shareholders of Western Atlas through a tax free spin-off pursuant to Section
355 of the Internal Revenue Code; and
WHEREAS, the Company and the Executive now desire to have the Company
assume the obligations of Western Atlas Inc. as they existed under the
Supplemental Executive Retirement Agreement between Western Atlas Inc. and
Executive (the "Western Atlas Agreement"); and
WHEREAS, the Company and the Executive desire to enter into this Agreement
in substitution for, and in place of, the Western Atlas Agreement and in release
of all rights of the Executive under the Western Atlas Agreement.
NOW THEREFORE, the Company and the Executive covenant, agree, represent,
warrant and understand, as follows:
ARTICLE I-- PURPOSE
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The purpose of this Agreement is to provide for supplemental retirement,
disability and death benefits to Executive, and thereby encourage Executive to
continue providing services to the Company. This Agreement is intended to
provide benefits solely for a management or highly compensated employee within
the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Payments
under this Agreement shall be made either from general assets of the Company or
from the assets of a trust which may be established hereunder. It is intended
that this Agreement remain at all times an unfunded plan for purposes of ERISA
and that the trust, if established, shall constitute a grantor trust under
Sections 671 through 679 of the Internal Revenue Code of 1986, as amended (the
"Code").
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ARTICLE II--DEFINITIONS
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SECTION 2.1 "ACTIVE PARTICIPANT" shall mean Executive so long as he
remains employed by the Company continuously from the date hereof, except as
provided for below as to Disability or death. Other than during a period of
Disability, Executive shall be treated as having terminated from employment
during any period of Leave of Absence, unless the Committee, in its sole and
absolute discretion, and subject to such terms and conditions as the Committee
may specify, decides otherwise. However, Executive, while Disabled or if
Executive dies while an Active Participant shall continue to be treated as an
Active Participant and, thus, continue to accrue additional Years of Service
until the earlier of the date that the Executive attains (or, if deceased, would
have attained) age 62, or the date that Executive is no longer Disabled. If
Executive returns to active employment with the Company when Disability ends, he
shall thereafter be an Active Participant, so long as such employment continues,
without further action. If Executive terminates employment with the Company
(other than for Disability) and is subsequently re-employed with the Company he
shall not be treated as an Active Participant unless the Committee determines
otherwise.
SECTION 2.2 "ACTUARIAL EQUIVALENT" shall mean the adjustment of an
amount or amounts using actuarial methods and factors identical with those
actuarial methods and factors then being used, at the time such calculations are
to be made hereunder, under the UNOVA Retirement Plan adopted by UNOVA, Inc. and
intended to be qualified under Section 401(a) of the Code, as such Plan may be
amended from time to time and any retirement plan intended to replace such Plan
(the "Qualified Plan").
SECTION 2.3 "AVERAGE EARNINGS" shall mean the average of gross base
salary payments plus Bonuses as defined in Section 2.6 from the Company (as used
in this Section 2.3 and hereinafter the term "Company" shall have the meaning
specified in Section 2.12) to the Executive in any three twelve consecutive
month periods (with no overlap), in which such Executive's gross base salary
payments plus gross Bonuses are the highest, in the Executive's final 60 months
of employment. For all purposes of calculating "Average Earnings" under this
Supplemental Plan "gross base salary" shall include all payments credited to
Executive related to base compensation before subtracting any amounts deferred
pursuant to Section 401(k) or 125 of the Code and does not include any amounts
credited as compensation to Executive relating to Bonuses or the exercise or
award under Company Stock-based option or award plans. .
(a). Average Earnings for purposes of calculating a Disability or
Death Benefit for or with respect to Executive shall be calculated using the 60
months that include and precede the month that his Disability commenced. If
Executive has returned to active employment with the Company after a period of
Disability but does not have a minimum of 36 consecutive calendar months of
employment with the Company after such return to active employment, then Average
Earnings shall be calculated by the Committee in accordance with subparagraph
(e).
(b). Average Earnings in the case Executive dies while employed
by the Company and prior to attaining age 62 shall be calculated using the 60
months that include and precede the month of Executive's death (or Disability,
in the case Executive dies while Disabled).
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(c) For purposes of calculating a lump sum payment pursuant to Section
3.1(c) in the event of a Change of Control, with respect to Executive (other
than while Disabled or when deceased) and who is an Active Participant as of the
date of such calculation, Average Earnings shall be calculated as if Executive's
employment with the Company ended on such date or the date as revised pursuant
to the terms of any Change of Control Agreement existing between the Company and
the Executive ("Change of Control Agreement" shall mean any agreement between
the Company and the Executive which provides for the employment of Executive
and/or the payment of compensation to Executive upon or following a Change of
Control).
(d). For purposes of calculating Average Earnings, Executive's
gross base salary plus gross Bonuses received while employed by Western Atlas
or Xxxxxx, if and to the extent such Western Atlas or Xxxxxx employment is
included within the period of 60 months to be used in such calculation, shall be
taken into account to the extent Executive's benefits under the Western Atlas
retirement plans were transferred to the Company pursuant to the Employee
Benefits Agreement between Western Atlas and UNOVA, Inc. (the "Employee Benefits
Agreement").
(e). Notwithstanding the foregoing, the Committee may determine
Average Earnings for the purposes of this Section by another methodology, if
that method is more advantageous to Executive.
SECTION 2.4 "BENEFICIARY" or "BENEFICIARIES" shall mean those who are
designated under this Agreement to receive payment of a benefit on account of
Executive's death. If and to the extent the spouse of Executive is living at
the time of Executive's death, only the spouse may be the Beneficiary. Upon the
death of the spouse after the death of Executive but prior to commencement of
Retirement Benefit payments, the Dependent Children of the Participant may be
Beneficiaries, but only of the Death Benefit.
SECTION 2.5 "BOARD" shall mean the Board of Directors of UNOVA, Inc. or
of its Successor, as of the time in question, the succession of which did not
result from or constitute or follow a Change of Control ("Successor" or
"Successors").
SECTION 2.6 "BONUS" or "BONUSES" shall mean the full amount of the bonus
or similar cash incentive awarded with respect to any given fiscal year or
portion thereof and shall be taken into account for purposes of determining
Average Earnings (i.e. shall be deemed to have been paid to the Executive,
regardless whether the amount is actually paid or deferred to a later year)
during the month in which the Bonus is determined and awarded by the Committee
(or other body or individual having authority to award such Bonus) under
Company-sponsored, formal or informal incentive compensation or bonus plans,
excluding, however, any payments under Company Stock-based option or award
plans. Further, as determined by the Committee at or prior to the award, any
payment(s) related to accomplishment of a particular non-ordinary course,
transaction or circumstance shall not be included as a "Bonus or Bonuses".
SECTION 2.7 "BUSINESS COMBINATION" shall have the meaning specified in
Section 2.8(c).
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SECTION 2.8 "CHANGE OF CONTROL" shall mean:
(a). The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended [the "Exchange Act"] (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty
percent (30%) or more of either (1) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or (2) the combined
voting power of the then outstanding voting securities of the Company entitled
to vote generally in the election of Directors (the "Outstanding Company Voting
Securities"); excluding, however, the following acquisitions of Outstanding
Company Common Stock and Outstanding Company Voting Securities: (A) any
acquisition directly from the Company other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so converted was
itself acquired directly from the Company; (B) any acquisition by the Company;
(C) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or (D)
any acquisition by any Person pursuant to a transaction which complies with
clauses (1), (2), and (3) of paragraph (c) below of this Section 2.8; or
(b). Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual who becomes a member of the
Board subsequent to such effective date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the Directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
provided further that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as such
terms are used in Regulation 14a-11 of Regulation 14A promulgated under The
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board shall not be so considered as a
member of the Incumbent Board; or
(c). The approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"), or,
if such consummation of such Business Combination is subject, at the time of
such approval by shareholders to the consent of any government or governmental
agency, the obtaining of such consent (either explicitly or implicitly by
consummation), excluding, however, such Business Combination pursuant to which
(1) all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination will beneficially own, directly or indirectly, more than sixty
percent (60%) of, respectively, the outstanding shares of common stock and the
combined voting power of the outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be; (2) no
Person (other than any employee benefit plan (or related trust) sponsored or
maintained by the Company or any
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Supplemental Executive Retirement Agreement
corporation controlled by the Company or such corporation resulting from such
Business Combination) will beneficially own, directly or indirectly, thirty
percent (30%) or more of, respectively, the outstanding shares of common stock
of the corporation resulting from such Business Combination or the combined
voting power of the outstanding voting securities of such corporation entitled
to vote generally in the election of directors except to the extent that such
ownership existed with respect to the Company prior to the Business Combination;
and (3) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination will have been members of
the Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination; or
(d). Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
SECTION 2.9 "CHIEF EXECUTIVE OFFICER" shall mean the chief executive
officer of UNOVA, Inc. or of its Successor.
SECTION 2.10 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
SECTION 2.11 "COMMITTEE" shall mean:
(a). The Compensation Committee of the UNOVA, Inc Board of
Directors.
(b). Notwithstanding Section 2.11(a), upon a Change of Control,
the Committee shall mean exclusively the "Special Administrators." The "Special
Administrators" shall be the individuals who constituted the Company's
Compensation Committee of the Board immediately prior to the Change of Control.
The "Special Administrators" shall constitute the Committee until the earlier of
the termination of this Agreement or the last day of the 18-month period
following the month in which the Change of Control occurred. The "Special
Administrators" shall have all rights and authority reserved to the Committee
under this Agreement, including, but not limited to, the rights specified in
Section 10.2.
(c). If a "Special Administrator" dies, becomes disabled, or resigns
as "Special Administrator" during the period that the "Special Administrators"
constitute the Committee, the remaining "Special Administrator(s)" shall
continue to serve as the Committee without interruption, and successor "Special
Administrator(s)" shall be designated, by the remaining "Special
Administrators". If at any time there are no remaining "Special
Administrators," the presiding Judge of the Superior Court of the State of
California for Los Angeles County shall designate three "Special
Administrators".
SECTION 2.12 "COMPANY" shall mean UNOVA, Inc., a Delaware corporation,
and its Successors, and their respective subsidiaries. Any reference to stock
or securities of the Company shall mean only the stock or securities of UNOVA,
Inc. or of its Successor.
SECTION 2.13 "DEATH BENEFIT" shall mean the benefit payable pursuant to
Article IV to the Executive's Beneficiary or Beneficiaries, if any.
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SECTION 2.14 "DEPENDENT CHILDREN" shall mean a natural or legally adopted
son or daughter who either: (a) has not attained age 19; or (b) has attained age
19 but has not attained age 23 and is a full-time student at an accredited
educational institution.
SECTION 2.15 "DIRECTOR" shall mean a member of the Board of Directors of
UNOVA, Inc. or of its Successor.
SECTION 2.16 "DISABILITY" or "DISABLED" shall mean the condition of the
Executive, or the Executive, when it has been determined by the Committee that
the Executive is unable to perform the material and substantive duties of the
Executive's position or profession, to an extent which prevents the Executive
from engaging in the Executive's regular position or profession, due to injury
or sickness for which the person is receiving medical care from, or with respect
to which a current certification of disability is received by the Committee
from, a professional person appropriate for such injury or sickness.
SECTION 2.17 "DISABILITY BENEFIT" shall mean the benefit payable pursuant
to Article V to the Executive because of Disability.
SECTION 2.18 "EMPLOYEE BENEFITS AGREEMENT" shall have the meaning
specified in Section 2.3(d).
SECTION 2.19 "ERISA" shall have the meaning specified in Article I.
SECTION 2.20 "EXCHANGE ACT" shall have the meaning specified in Section
2.8(a).
SECTION 2.21 "XXXXXX" shall mean Xxxxxx Industries, Inc., a Delaware
corporation, and its subsidiaries at the time in question.
SECTION 2.22 "LEAVE OF ABSENCE," with respect to Executive, shall mean
and refer to a discontinuance of regular, full-time services by the Executive
for the Company resulting in the discontinuance, in whole or in part, of base
salary payments by the Company to Executive during such discontinuance of
service, provided, however, that, to the extent federal or state so-called
"Family Leave Acts" or "Maternity or Pregnancy Leave Acts" may make unlawful the
treatment of an absence or a portion of an absence as a termination for purposes
of this Agreement, such absence or portion shall not constitute a Leave of
Absence.
SECTION 2.23 "NORMAL FORM" shall mean the form of Retirement Benefit
payable under Section 3.5 to a Retired Participant.
SECTION 2.24 "OFFSET AMOUNT" shall mean the sum of the annual "primary
insurance amount" and the annual "Company-provided pension."
(a). The "primary insurance amount" shall mean the annual benefit
determined under the Social Security Act that is payable to the Executive as of
the calendar year that Retirement Benefits to the Executive, if any, would
commence under this Agreement. If no "primary insurance amount" is payable to
Executive, who is otherwise covered by the Social Security Act, as of the
calendar year in which Retirement Benefits to the Participant, if any, would
commence under this Agreement, then the "primary insurance amount" shall be
deemed to be the "primary insurance amount" that would be payable to the
Executive at the
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earliest date thereafter or would have been payable at the earliest date
thereafter, in the case the Executive is deceased; provided, however, that the
amount payable under the Social Security Act shall be determined without regard
to any election by the Executive or a Beneficiary to defer receipt of a benefit
and without regard to any reduction of the amount of the Social Security Act
benefit by virtue of the receipt of earned income by the Executive or a
Beneficiary. The "primary insurance amount" shall also include any annual
retirement benefit payable under any public retirement program of a foreign
country that the Committee determines is comparable in purpose to the benefits
payable under the Social Security Act.
(b). The "Company-provided pension" shall mean the annual amount
that would be payable to the Executive under any defined benefit or defined
contribution plan sponsored by the Company, which is either intended to qualify
under Section 401(a) of the Code or is intended to restore benefits under such
plan (excluding only this Agreement and Part II of the UNOVA or Western Atlas
FSSP and Restoration Plan). Any non-United States defined benefit or defined
contribution plan of the Company which is not subject to the Code but which is
comparable in purpose to plans which would qualify under Section 401(a) of the
Code shall be included within the meaning of "Company-provided pension." The
amount of the "Company-provided pension" shall be deemed to be the amount which
would have been payable if the Executive joined each such plan at the earliest
date on which the Executive was eligible to join such plan and participated in
the plan to the fullest extent possible and withdrew his actual and presumed
contributions, plus income thereon. The amount of the "Company-provided
pension" shall be calculated under the terms that were in effect during the
Executive's actual, if any, and presumed participation, except that a
subsequent, retroactive amendment to any of such plans shall be taken into
account only to the extent that it actually would have increased the Executive's
benefit under that plan. The "Company-provided pension" shall be computed as if
the Executive actually received the plan benefits under such "Company-provided
pension" as a single life annuity beginning on the date that Retirement Benefits
commence under this Agreement.
SECTION 2.25 "OUTSTANDING COMPANY COMMON STOCK" and "OUTSTANDING COMPANY
VOTING SECURITIES" shall have the meanings specified for those items in Section
2.8(a).
SECTION 2.26 "PERSON" shall have the meaning specified in Section 2.8(a).
SECTION 2.27 "QUALIFIED PLAN" shall have the meaning specified in Section
2.2.
SECTION 2.28 "RETIREMENT BENEFIT" shall mean the benefits payable to
Executive and, if applicable, the Beneficiary of Executive, as provided in
Article III.
SECTION 2.29 "SPECIAL ADMINISTRATORS" shall have the meaning specified in
Section 2.11(b).
SECTION 2.30 "SUCCESSOR" or "SUCCESSORS" shall have the meaning specified
in Section 2.5.
SECTION 2.31 "TRUST" shall mean a grantor trust under Section 671 through
679 of the Code, if and when established. The decision to establish a Trust
shall be in the sole and absolute discretion of the Company.
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SECTION 2.32 "TRUSTEE" shall mean the trustee of the Trust.
SECTION 2.33 "TRUST AGREEMENT" shall mean the terms of the agreement,
entered into between UNOVA, Inc. or its Successor and the Trustee, that
establishes the Trust.
SECTION 2.34 "WESTERN ATLAS" shall mean Western Atlas Inc., a Delaware
Corporation, and its subsidiaries at the time in question.
SECTION 2.35 "YEARS OF SERVICE" shall mean the number resulting from:
(a). The division of twelve into the number of consecutive and
continuous calendar months of employment with the Company (or immediately prior
thereto, the number of consecutive and continuous calendar months of employment
with Western Atlas and Xxxxxx) that elapse from and include the month that
Executive commenced the period of employment with the Company and which ends:
(1) upon the Executive's death; or (2) upon termination of Executive's
employment with the Company other than by death, until and including the earlier
of the month of such death or termination; provided, however, that for an
Executive who dies or becomes Disabled while an Active Participant, Executive
shall continue to accrue Years of Service from the date of such death or
Disability until the earlier of the calendar month (x) in which Executive
attains or, if deceased, would have attained age 62, or (y) in which Executive
is no longer Disabled.
(b). For purposes of determining Executive's Years of Service
under the terms of Section 2.35(a), service with Xxxxxx and Western Atlas
immediately preceding the period of service with the Company referred to in
Section 2.35(a) which ends upon the Executive's death, or which ends upon the
termination of employment with the Company other than by death, shall be taken
into account.
(c). In its discretion, the Committee may: (1) compute
Executive's Years of Service by treating separate but not continuous periods of
employment with Xxxxxx, Western Atlas or the Company as continuous periods of
employment; (2) credit Executive with Years of Service in addition to the Years
of Service accrued while actually employed with Xxxxxx, Western Atlas or the
Company; and (3) credit Executive for Years of Service solely for purposes of
satisfying the vesting requirements of Sections 3.3.
(d). For purposes of calculating a lump sum payment pursuant to
Section 3.1(c) in the event of a Change of Control, with respect to Executive
while an Active Participant, Years of Service shall be determined as if the
Executive's employment with the Company ended on such date or, if that date is
adjusted pursuant to the terms of any Change of Control Agreement between the
Company and the Executive, then that later date.
ARTICLE III--RETIREMENT BENEFITS
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SECTION 3.1 ELIGIBILITY FOR RETIREMENT BENEFIT.
(a). GENERAL. Executive shall be eligible to begin receiving a
Retirement Benefit if Executive has (1) either attained age 62 or satisfied the
conditions in Section 3.1(b) below; (2) filed an election to receive payments
under Article VI; (3) satisfied the vesting requirement of Section 3.3; (4)
terminated employment with the Company; and, (5) except
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when Executive's employment with the Company is terminated in connection with a
Change of Control, the Executive agrees that for a period of five years after
commencement of receipt of Retirement Benefits under this Agreement, not to
engage in any activity which interferes with the economic or business interests,
or contractual relationships of UNOVA, Inc. or its Successors or of any of its
subsidiaries or affiliates with third parties in connection with which the
Participant worked for UNOVA, Inc. or its subsidiaries or affiliates or to
perform services for any entity in competition with a business of UNOVA, Inc. or
of its subsidiaries or affiliates for which the Executive worked and with
respect to which the Executive possesses trade secrets or business confidential
information of UNOVA, Inc. or of its subsidiaries or affiliates. In the event
that any provision of the covenant provided for in (5) immediately above shall
be held invalid or unenforceable by reason of the geographic or business matter
scope, or the duration thereof, such invalidity or unenforceability shall attach
only to such provisions and shall not affect or render invalid or unenforceable
any other provision of this Agreement, and this Agreement shall be construed as
if the geographic or subject matter scope, or the duration thereof, had been
more narrowly drafted so as not to be invalid or unenforceable.
(b). RETIREMENT BENEFITS PRIOR TO AGE 62. Executive shall not be
entitled to begin receiving a Retirement Benefit prior to attainment of age 62,
except in the sole and absolute discretion of the Committee, and subject to such
terms and conditions, including the imposition of Retirement Benefit reductions,
as the Committee may specify.
(c). CHANGE OF CONTROL. Except as otherwise provided in any Change of
Control Agreement between the Company and the Executive, notwithstanding
anything herein to the contrary, upon a Change of Control, if Executive is an
Active Participant or if Executive has satisfied the conditions of Section
3.1(a)(3) and (4), Executive shall be entitled to a lump sum payment equal to
the Actuarial Equivalent, at the age of such Participant at the date of the
Change of Control, of the Retirement Benefit which would be payable to such
Participant at the later of age 62 or the actual age of Executive as revised
pursuant to the terms of any Change of Control Agreement between the Company and
the Executive, assuming, for such purposes, that the Retirement Benefit is
payable in the form of a single life annuity. In addition, there shall be
waived any condition concerning eligibility for payment of a Retirement Benefit
that requires: (1) the filing of any election; (2) the attainment of a specified
age; (3) an agreement not to engage in competitive activities with the Company;
(4) satisfaction, as to the Executive, of the conditions of Section 3.1(a)(3) or
of any other terms or conditions or the application of any benefit reductions
described in Section 3.1(b); and (5) as to the Executive, termination of
employment with the Company, in order to begin receiving Retirement Benefits.
SECTION 3.2 RETIREMENT BENEFIT FORMULA. Executive's annual Retirement
Benefit shall be the amount resulting from multiplying Average Earnings by the
Percentage Factor set forth in Exhibit A attached hereto and made a part hereof
corresponding to the age of Executive at the earlier of the date of Executive's
retirement or the age of Executive upon Executive's termination of employment
for any reason other than a Change of Control or the age of Executive while an
Active Participant as of the date of a Change of Control except as such
Retirement Benefit is adjusted pursuant to Section 3.1(c) and Section 3.6 (c).
In the event of a Change of Control while the Executive is an Active Participant
the benefit shall be determined using the age for Executive which is adjusted
pursuant to Sections 3.1(c) and 3.6(c).
SECTION 3.3 VESTED RETIREMENT BENEFIT. Executive has a vested right to
a Retirement Benefit under this Agreement and shall be entitled to receive such
Retirement
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Benefit once Executive has reached age 62 even though Executive shall have
terminated employment with the Company for any reason prior to age 62.
SECTION 3.4 RETIREMENT BENEFIT FORMS.
(a). GENERAL RULE. Unless Executive had made an election to receive
payment of Retirement Benefits in an available alternative form, Executive shall
be deemed to have elected the Normal Form.
(b). ACTUARIAL EQUIVALENT. In the event the Committee permits the
Executive to draw a Retirement Benefit before reaching age 62, then all forms of
payment of Retirement Benefits shall be the Actuarial Equivalent of a single
life annuity payable at age 62.
SECTION 3.5 NORMAL FORM OF RETIREMENT BENEFIT.
(a). SINGLE LIFE ANNUITY. The Normal Form of payment of a Retirement
Benefit for Executive who is living at the time payment commences and who is
unmarried on such date shall be a single life annuity. Under a single life
annuity, Executive shall receive a monthly benefit for life equal to 1/12 of his
Retirement Benefit and all payments shall cease upon Executive's death.
(b). JOINT AND SURVIVOR ANNUITY. If Executive is married at the time
that payment of the Retirement Benefit commences, the Normal Form of Retirement
Benefit shall be a 100% joint and survivor annuity (which shall be the Actuarial
Equivalent of a single life annuity) for the benefit of the Executive's spouse
as of the date that payment of the Retirement Benefit commences. Under the
Normal Form of a joint and survivor annuity, Executive shall receive a monthly
benefit for life and, upon the Executive's death, the spouse, if living, shall
receive a monthly benefit for life equal to 100% of the monthly benefit that was
payable to the Executive. If Executive, who has satisfied the conditions of
Section 3.1(a)(3) (including consideration of Years of Service accrued for
Disabled or deceased Participants pursuant to Section 2.1), dies prior to the
commencement of the payment of Retirement Benefits, and was married at the date
of death, the spouse Beneficiary of Executive shall have the right to a survivor
Retirement Benefit, commencing at the date Executive would have attained age 62,
except for the fact that the Participant died prior to attaining age 62, or
commencing on the first day of the month following the month in which the
Executive died, if the Executive continued in continuous employment with the
Company after attaining age 62 and until the date of Executive's Participant's
death, calculated under Section 3.2 as if the Executive had survived to such
entitlement date and begun receiving payment of the Retirement Benefit at such
entitlement date as a joint and 100% survivor annuity and then died on the
following date.
SECTION 3.6 ALTERNATIVE FORMS OF BENEFIT.
(a). ELECTION OF FORMS OF BENEFIT. Prior to the commencement of
payment of a Retirement Benefit, Executive may file an election designating a
payment form other than the Normal Form of Retirement Benefit; provided,
however, that any such alternate payment form is a payment form available under
the Qualified Plan and, if Executive is entitled to a benefit under such
Qualified Plan, is the same as the payment form elected under such Qualified
Plan. If Executive is married, an election to receive a Retirement Benefit in a
form other than the Normal Form shall be valid only if such election includes
the written consent of
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the Executive's spouse in the form and manner specified by the Committee.
However, a joint and survivor annuity shall not be available under this
Agreement with respect to any Beneficiary other than the spouse of the Executive
as of the date that the Retirement Benefit commences.
(b). ADDITIONAL FORMS OF BENEFIT. From time to time, the
Committee may, in its sole discretion, make other forms of payment of Retirement
Benefits available; provided, however, that once Executive or Executive's
Beneficiary begins receiving Retirement Benefit payments, no change may be made
in the form of payment except as provided for in Section 3.6(c) below.
(c). FORM OF BENEFIT ON CHANGE OF CONTROL. Notwithstanding the
other provisions of this Section, upon a Change of Control, all Retirement
Benefits including, without limitation, benefits payable to Active Participants
who remain employed by the Company, shall be paid in a single sum payment that
is the Actuarial Equivalent at the age of the Executive as of the date of Change
of Control of a single life annuity payable at the later of age 62 or, if the
Executive had remained in continuous employment with the Company after attaining
age 62, the age of the Executive at the date of Change of Control as adjusted
under the provisions of any Change of Control Agreement between the Company and
the Executive.
ARTICLE IV--BENEFITS UPON EXECUTIVE'S DEATH
SECTION 4. 1 ELIGIBILITY FOR DEATH BENEFIT. The Beneficiary or
Beneficiaries of Executive in the event Executive dies while an Active
Participant or while Disabled and prior to attaining age 62 and prior to the
time Retirement Benefits to Executive commence, shall be eligible to begin
receiving a Death Benefit if the Beneficiary or Beneficiaries have filed a claim
under Article VI. The Beneficiary or Beneficiaries of Executive shall not be
eligible for a Death Benefit, if the Executive's employment with the Company
terminated prior to Executive's death other than by reason of Disability. If
there are no Beneficiaries at the date of the Executive's death, no Death
Benefit shall be payable. The class of individuals who are eligible to be
Beneficiaries of the Death Benefit is limited to the Executive's spouse, as of
the date of the Executive's death, and the Executive's Dependent Children as of
the date of Executive's death; provided, however, that such term also shall
include any natural children of Executive born after Executive's death and any
child who is in the process of being adopted by the Executive at the date of
Executive's death and the adoption of whom is completed by the spouse of
Executive after the date of Executive's death. If there is both a living spouse
and Dependent Children as of the date of Executive's death, the Beneficiary
shall be the spouse. The Dependent Children shall become the Beneficiaries of
the Death Benefit, but only upon the death of Executive's spouse prior to the
earlier of the date the Executive would have attained age 62, or the date the
Participant's spouse commences to receive a Retirement Benefit.
SECTION 4.2 DEATH BENEFIT.
(a). SPOUSAL BENEFIT. The Death Benefit for the surviving spouse of
Executive shall be an annual amount equal to 40% of Executive's Average
Earnings. The spouse Beneficiary shall receive the Death Benefit as a monthly
benefit equal to 1/12 of the Death Benefit. The Death Benefit for the spouse
Beneficiary shall cease on the earlier of: (1)
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Supplemental Executive Retirement Agreement
the death of the spouse Beneficiary; or (2) the date at which the Executive
would have attained age 62.
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(b). DEPENDENT CHILDREN BENEFIT. If there is no spouse Beneficiary or
a spouse Beneficiary of Executive dies prior to the death of Executive and the
Executive dies prior to attaining age 62 while an Active Participant or while
Disabled, then a Death Benefit shall be paid to any then Dependent Children for
so long as any such remain Dependent Children. The aggregate amount of any
Death Benefit payable to Dependent Children for each month is the amount equal
to the monthly Death Benefit that would be payable to a spouse Beneficiary
multiplied by a fraction (not greater than one), the numerator of which is the
number of Dependent Children at the time of each monthly payment and the
denominator of which is three. If there are no remaining living Dependent
Children Beneficiaries, no further Death Benefit shall be paid.
(c). VESTING IN DEATH BENEFIT. While an Active Participant or
Disabled, Executive shall at all times be vested in his right to a Death
Benefit.
SECTION 4.3 SPOUSE RETIREMENT BENEFIT. To the extent that a spouse
Beneficiary is receiving a Death Benefit on the date the Executive would have
attained age 62, the spouse Beneficiary thereafter shall receive a Retirement
Benefit pursuant to Article III, if eligible, in the amount calculated pursuant
to Article III, and no further Death Benefit payments shall be payable to the
spouse Beneficiary or to any Dependent Children Beneficiaries or otherwise.
SECTION 4.4 CHANGE OF CONTROL. Upon a Change of Control, after the
Executive's death while an Active Participant or after the Executive's death
while Disabled but in either case prior to the date the Executive would have
attained age 62, the Executive's spouse, if then living, shall receive a single
sum payment that is the Actuarial Equivalent, at the date of such lump sum
payment, of the Death Benefit, calculated through the date that Executive would
have attained age 62. The spouse Beneficiary, if then living, shall also be
entitled to the lump sum payment of the Retirement Benefit, if any, pursuant to
Section 3.1. Upon a Change of Control occurring after commencement of the
payment of Death Benefits to the Dependent Children Beneficiaries pursuant to
Section 4.2(b), the Dependent Children shall receive a single sum payment that
is the Actuarial Equivalent, based upon the ages of the Dependent Children, of
the Death Benefit calculated without regard to the date the Executive would have
attained age 62.
ARTICLE V--BENEFITS OF DISABLED EXECUTIVE
-----------------------------------------
SECTION 5.1 ELIGIBILITY FOR DISABILITY BENEFIT. If while an Active
Participant, Executive becomes Disabled prior to attaining age 62, Executive
shall be eligible to begin receiving a Disability Benefit. The Disability
Benefit shall cease on the earlier of: (1) the first day of the calendar month
following the Executive's attainment of age 62; (at which time a Retirement
Benefit may be payable under Article III), (2) the date on which the Committee
determines that the Executive is no longer Disabled; or (3) the date of the
Executive's death (in which case a Death Benefit may be payable under Article
IV).
SECTION 5.2 DISABILITY FORMULA. A Disability Benefit shall be a monthly
amount equal to 1/12 of 40% of the Executive's Average Earnings, offset by the
sum of: (a) any other payment to the Executive that would be made by or on
behalf of the Company on account of the Disability (including, without
limitation, a Company-sponsored disability insurance plan or
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any other benefit plan of the Company, any amounts payable as sick pay, and any
amounts payable under so-called Workers Compensation Acts or similar laws of
foreign governments other than lump sum amounts for the loss of an organ or
other body member and other than amounts paid for medical expenses), calculated
as if the Executive participated to the fullest extent possible in such
disability programs; and (b) the Social Security disability benefits received by
the Executive. For purposes of determining any offset under the preceding
sentence, any payments that are not made on a monthly basis shall be converted
to monthly payments under a methodology approved by the Committee.
SECTION 5.3 VESTING DISABILITY BENEFIT. Executive, while an Active
Participant shall at all times be vested in his right to a Disability Benefit.
SECTION 5.4 DISABLED EXECUTIVE'S RETIREMENT BENEFIT. If Executive
attains age 62 while Disabled, then he may be eligible to receive a Retirement
Benefit subject to the rules of Article III, as if Executive continued his or
her employment until age 62 with Average Earnings calculated as provided for in
Section 2.3(a).
ARTICLE VI--ELECTIONS, CLAIMS, COMMENCEMENT OF
PAYMENTS AND BENEFICIARY DESIGNATIONS
----------------------------------------------
SECTION 6.1 GENERAL. All elections to receive benefits under this
Agreement must be made in writing to the Committee in the form specified by the
Committee and include the information or documentation that the Committee deems
necessary. The Committee, in its discretion, may request additional information
or reasonable documentation from time to time in order to determine whether
Executive receiving a Disability Benefit continues to be Disabled, and in order
to determine whether any Beneficiary who is receiving a Death Benefit is
entitled hereunder to continue receiving a Death Benefit or the amount thereof.
SECTION 6.2 COMMENCEMENT OF PAYMENTS. Payment of benefits under this
Agreement shall begin as soon as administratively feasible after the Executive
(or Beneficiary, if applicable) has provided a claim for benefits in writing to
the Committee, including any supporting documentation required by the Committee,
and the Committee has determined that the Executive (or Beneficiary, if
applicable) satisfies the requirements for payment. Retirement Benefits shall
be payable on the later of:
(a) the first day of the month following the month in which the Executive
satisfies all of the conditions set forth in Section 3.1(a), or
(b) if later, the first day of the month following the month in which the
Executive attains the earlier of age 62, or the age, below 62, elected by the
Participant pursuant to and in accordance with the conditions of Section 3.1(b),
provided, however, that in the event Executive has satisfied the conditions of
Section 3.1(a)(1), (3) and (4) in or as of a particular month (the "Termination
Month") and satisfies the conditions of Section 3.1(a)(2) and (5) (effective as
of the date of termination of employment) either subsequently or
contemporaneously with the Termination Month, and provided that the Executive
has attained during the Termination Month age 62 or an age less than 62 with
respect to which the Committee has approved retirement pursuant to Section
3.1(b), Retirement
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Benefits shall be payable to the Executive as of the first day of the month
following the Termination Month and, in the case of retirement pursuant to
Section 3.1(b), on such terms and conditions as specified by the Committee.
Disability and Death Benefits shall be payable from the first day of the month
following the month in which the Executive becomes disabled or dies, as the case
may be. In the event of any administrative delay in actual payments, payments
shall be made retroactively to the first day of the month following the month in
which the event which is the basis for the payment occurs but without any
payment of interest or other compensation for such delay in payment.
Notwithstanding any provision of this Agreement, upon a Change of Control the
Committee may, in its sole discretion, determine to postpone the lump sum
payment of Retirement, Death and Disability Benefits payable upon a Change of
Control, in which case such Benefit payments shall be made as otherwise provided
in this Agreement, without regard to the Change of Control, provided however,
that if Executive is party to a Change of Control Agreement, such Benefit
payments shall be calculated using the age of Executive as adjusted pursuant to
the Change of Control Agreement. In the event the Committee later determines,
in its sole discretion, to effect such a lump sum payment of the remainder of
such Benefits, it shall have the power and authority to do so.
SECTION 6.3 FORM OF BENEFIT ELECTIONS. An election to receive payment
of Retirement Benefits in a form other than the Normal Form must be submitted to
the Committee in writing at any time prior to the commencement of payments. An
election must be made in the form specified by the Committee and include the
information or documentation that the Committee deems necessary, including
written consent of the spouse in the case Executive is married and elects a
Retirement Benefit in a form other than the Normal Form. The filing of an
election as to the form of Retirement Benefits shall revoke any pre-existing
election, except that a revocation of an election by Executive while married
shall be valid only if accompanied by the spouse's written consent to the
subsequent election (other than a subsequent election to receive payments in the
Normal Form), and except that once Retirement Benefits have commenced under this
Agreement, the form of the Retirement Benefit payable is irrevocable.
SECTION 6.4 BENEFICIARIES. If the Committee makes available alternative
benefit forms that provide for payments after an Executive's death, the
Executive shall designate the Beneficiary under such payment form in accordance
with the procedures set forth by the Committee.
SECTION 6.5 FAILURE TO CLAIM. If Executive whose employment with the
Company terminated on or before attaining age 62 fails to claim payment of
Retirement Benefits until after attaining age 62, the Retirement Benefits
payable to or with respect to Executive shall be the monthly amount which would
have been payable to Executive at age 62, and Executive shall be entitled to
receive Retirement Benefit payments retroactive to the month such payments would
have first accrued following attainment of age 62, but without interest or other
payment on account of such deferred receipt. Similarly, if Executive remains
employed by the Company after attaining age 62 but, upon termination of
employment by the Company after attaining age 62, fails to claim payment of
Retirement Benefits until a date after such termination of employment, the
Retirement Benefits payable to or with respect to Executive shall, nevertheless,
be the monthly amount which would have been payable to Executive upon
termination of employment with the Company, and Executive shall be entitled to
receive Retirement Benefit payments retroactive to the month such payments would
have first accrued following termination of employment, but without interest or
other payment on account of such
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deferred payment. Executive does not have the right to defer payment of
Retirement Benefits beyond the date Executive is otherwise eligible to begin
receiving Retirement Benefits.
ARTICLE VII--ADMINISTRATION
---------------------------
The Committee shall administer the Agreement in accordance with its terms
and purposes. The Committee shall have full authority and discretion to
interpret the Agreement, to determine benefits pursuant to the terms of the
Agreement, to establish rules and procedures necessary to carry out the terms of
the Agreement, and to waive or modify any requirements or conditions on the
receipt or calculation of benefits under the Agreement where the Committee
determines that such a waiver or modification is appropriate. In the event
Executive is or was also a participant in a similar supplemental retirement plan
for highly-compensated employees within the meaning of Sections 201(2), 301(a),
and 401(a)(1) of Title I of ERISA and maintained by UNOVA, Inc. or one of its
subsidiaries or affiliates (a "Subsidiary Plan"), the Committee shall have the
power and authority to modify and integrate the benefits payable under this
Agreement with the benefits payable under the Subsidiary Plan. All decisions by
the Committee shall be final and binding on all parties. The Committee may
appoint one or more officers or employees of the Company to act on the
Committee's behalf with respect to administrative matters related to the
Agreement.
ARTICLE VIII--SOURCE OF PAYMENTS
--------------------------------
SECTION 8.1 GENERAL ASSETS OF COMPANY. Benefits payable under this
Agreement shall be paid directly to the Executive, or to the Executive's
Beneficiary, as applicable, from the general assets of the Company, including
the assets of the grantor Trust to the extent that such a trust is created and
so provides. If any person acquires a right to receive payments from the
Company under this Agreement, such right shall be no greater than the right of
any unsecured general creditor of the Company notwithstanding the fact that the
Company may establish an advance accrual reserve on its books against its future
liability under this Agreement.
ARTICLE IX--CLAIMS AND ENFORCEMENT
----------------------------------
SECTION 9.1 ADMINISTRATIVE PROCEDURES.
(a). NOTICE OF DENIAL. If the Committee determines that any
person who has submitted a claim for payment of benefits under this Agreement is
not eligible for payment of benefits or, if applicable, is not eligible for
payment of benefits in the form or amount requested, then the Committee shall,
within a reasonable period of time, but no later than 90 days after receipt of
the written claim, notify the claimant of the denial of the claim. Such notice
of denial: (1) shall be in writing; (2) shall be written in a manner calculated
to be understood by the claimant; and (3) shall contain: (A) the specific reason
or reasons for denial of the claim; (B) a specific reference to the pertinent
Agreement provisions or administrative rules and regulations upon which the
denial is based; (C) a description of any additional material or information
necessary for the claimant to perfect the claim; and (D) an explanation of the
Agreement's appeal procedures.
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(b). RECONSIDERATION PROCEDURES. Within 90 days of the receipt
by the claimant of the written notice of denial of the claim, the claimant may
file a written request with the Committee that it conduct a full and fair review
of the denial of the claimant's claim for benefits. The claimant's written
request must include a statement of the grounds on which the claimant appeals
the original claim denial. The Committee shall deliver to the claimant a
written decision on the claim promptly, but not later than 60 days after the
receipt of the claimant's request for review, except that if there are special
circumstances that require an extension of time for processing, the 60-day
period shall be extended to 120 days, in which case written notice of the
extension shall be furnished to the claimant prior to the end of the 60-day
period.
SECTION 9.2 ENFORCEMENT.
(a). RIGHT TO ENFORCE. Within 90 days after exhaustion of the review
and appeal procedures provided for in Section 9.1 or, if the Committee fails to
grant or deny the claim within 120 days after the claimant's original claim or
fails to provide the written decision of the Committee on any written request
for reconsideration within the time period in Section 9.1(b), within 90 days
after such failure, the Company's obligations under the Agreement may be
enforced only through binding arbitration as provided for hereinafter, initiated
by Executive or, upon the death of Executive, by Executive's surviving spouse,
Dependent Child, or personal representative (as the case may be, the
"Claimant").
(b). ATTORNEYS' FEES AND COSTS. If, prior to a Change of Control, any
Claimant is denied a claim, in whole or in part, for benefits under this
Agreement and the Claimant requests reconsideration under the procedures
described in Section 9.1(b), or initiates any other legal proceeding (other than
binding arbitration pursuant to the following provisions of this Article IX)
with respect to such alleged claim, the Company shall have no obligation to pay
or reimburse the Claimant for attorneys' fees and costs. If, on or after a
Change of Control, any Claimant is denied a claim for benefits under this
Agreement and the Claimant has requested reconsideration under the procedures
described in Section 9.1(b), or initiates binding arbitration or both
reconsideration and binding arbitration, to enforce any obligation of the
Company under this Agreement the basis of which is alleged failure of the
Committee to administer this Agreement in accordance with its terms or, if
following a Change of Control, the Company fails to make payment of Benefits as
determined by the Committee, the Company shall pay such Claimant's attorneys'
fees and costs incurred in connection with the review and binding arbitration
proceedings, provided that the arbitrator determines that the claim is not
frivolous. All attorneys' fees and costs payable under this Section 9.2(b)
shall be paid by the Company as they are incurred by the Claimant, but no later
than 30 days from the date that the Claimant submits a xxxx or other statement
to the Company.
(c). INTEREST. If any Claimant prevails in a reconsideration
procedure described in Section 9.1(b), or if a Claimant prevails in the binding
arbitration proceeding pursuant to Section 9.3(a) to enforce the payment of
benefits under this Agreement, the Company shall pay interest to the Claimant on
any unpaid benefits accruing from the date that benefit payments should have
commenced and continuing until the date that such owed and unpaid benefits are
paid to the Claimant in full. For purposes of the preceding sentence, interest
shall accrue at an annual rate equal to one percent, plus the prime rate
reported by THE WALL STREET JOURNAL as in effect from time to time, each change
in the prime rate to be effective
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Supplemental Executive Retirement Agreement
for purposes of any interest computation on the date of publication of such
changed prime rate in THE WALL STREET JOURNAL.
SECTION 9.3 ARBITRATION. The rights of Executive hereunder are
conditional upon the acceptance by Executive, on the Executive's behalf and on
behalf of the Claimants, of all of the terms and conditions of this Agreement
including specifically and without limitation this Article IX. Any controversy
or claim arising out of or under the Agreement which is not resolved by the
reconsideration referred to in Section 9.1(b) shall be settled by arbitration in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA") or the Employment Arbitration Rules
of the Judicial Arbitration and Mediation Services/Endispute ("JAMS"), subject
to the further provisions of this Section 9.3. Hereinafter the term "Rules"
means and refers to the aforesaid AAA Rules or the JAMS Rules, as the case may
be. Judgment upon the award rendered by the arbitrator may be rendered in any
court having jurisdiction. The Rules are modified or supplemented as follows:
(a). There shall be one arbitrator, unless the parties agree to
more than one arbitrator;
(b). The arbitrator shall be a retired judge or attorney with
professional experience and expertise in designing or administering corporate
retirement benefits and plans, and resident in the Southern California area,
unless the parties agree otherwise;
(c). The arbitration shall be conducted within Los Angeles
County, California, unless the parties agree otherwise;
(d). The party desiring to initiate the arbitration shall advise
the other party in writing of such desire;
(e) Within 10 days of receipt of a notice pursuant to subparagraph
(d) above the party receiving the notice shall designate either the AAA or JAMS
as the arbitration agency, but in the event such party fails to designate within
such period the initiating party shall have the right to designate the AAA or
JAMS;
(f). All claims arising under this Agreement known or which
should be known to the party initiating the arbitration shall be included in the
issues presented to the AAA or JAMS, as the case may be, for arbitration and
any which are not included shall be effectively waived;
(g). The expedited procedures of the AAA or JAMS, as the case may
be, shall be applied in any case where no disclosed claim or counterclaim
exceeds the amount then established by the AAA or JAMS for use of expedited
procedures, exclusive of interest and arbitration costs;
(h). The decision of the arbitrator shall be rendered within 60 days
after the close of hearings;
(i). The Company and the Claimant shall furnish to the other, 30
days prior to the first hearing, a list and identification of all witnesses, and
copies of all exhibits intended
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Supplemental Executive Retirement Agreement
to be submitted by that party. Ten days prior to the first hearing, each party
shall have the right to supplement their intended list of witnesses and provide
additional exhibits. Only such witnesses and such exhibits identified by one
party or the other may be offered in the arbitration hearings; and
(j). Any documents, affidavits or other evidence requested by the
arbitrator must be submitted within ten days after conclusion of the arbitration
hearings, unless the arbitrator grants additional time;
ARTICLE X--MISCELLANEOUS
------------------------
SECTION 10.1 EMPLOYMENT RIGHTS. Nothing contained in this Agreement
shall be construed as a contract of employment between the Company and the
Executive, or as a right to continued employment with the Company, or as a
limitation of the right of the Company to discharge Executive, with or without
cause.
SECTION 10.2 RIGHTS OF THE COMMITTEE. To the extent permitted by law,
the Company shall indemnify the Committee (including any officers and employees
of the Company appointed to act on behalf of the Committee) and hold such
individuals harmless from and against any damages, losses, costs, and expenses
incurred (including, without limitation, expenses of investigation and the fees
and expenses of counsel) in the course of administering this Agreement. The
Company shall bear all expenses of the Committee incurred in the course of
administering this Agreement.
SECTION 10.3 ASSIGNMENT. The benefits payable under this Agreement may
not be assigned or alienated.
SECTION 10.4 APPLICABLE LAW. This Agreement shall be governed by the
laws of Delaware.
SECTION 10.5 ENTIRE AGREEMENT. This writing is the final expression of
this Agreement and a complete and exclusive statement of its terms, except that
to the extent that this Agreement refers to the Trust, the terms of the Trust
Agreement, as of the date immediately preceding a Change of Control, shall be
deemed to be incorporated herein.
SECTION 10.6 TERMS. Except as required otherwise by the context,
capitalized terms that are used in this Agreement shall have the meaning
assigned to them in Article II or elsewhere in this Agreement. Feminine or
neuter pronouns shall be substituted for those of the masculine form and the
plural shall be substituted for the singular, in any place or places herein
where the context may require such substitution or substitutions. The title and
headings of the Sections of this Agreement are for convenience only, and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 10.7 WAIVER. Any waiver of or failure to enforce any provision
of this Agreement in any instance shall not be deemed a waiver of such provision
as to any other or subsequent instance.
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SECTION 10.8 RELEASE. Executive agrees that this Agreement is in
substitution for, and in place of, the similar Supplemental Executive Retirement
Agreement between Executive and Western Atlas Inc. and is full release of all
rights of the Executive under the Western Atlas Agreement.
In Witness Whereof, intending to be legally bound, the parties hereto have
executed this Agreement or caused this Agreement to be executed on their
respective behalfs on and as of October __, 1997.
UNOVA, INC.
By:
-------------------------------
Xxxxxxxx X. Xxxxx
Vice President and Secretary
EXECUTIVE
By:
-------------------------------
Xxxxx X. Xxxxx
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