SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
AGREEMENT made as of the __ day of ____, by and between Xxxxxxx-Xxxxxx
Corporation (together with its subsidiaries and affiliates, "the Company") and
_________ ("the Executive").
Whereas, the Company has employed the Executive in positions of substantial
responsibility for many years; and
Whereas, the Executive has made material contributions to the success of the
Company; and
Whereas, the Company wishes to reward the Executive for his contributions to its
success, to provide an incentive for the Executive to remain in employment with
the Company, by providing special supplemental retirement benefits for the
Executive under the terms and conditions set forth herein, and to secure the
covenant of the Executive not to compete with the Company following his
retirement from the employment of the Company; and
Whereas, the Executive wishes to receive the benefits provided pursuant to this
Agreement and expressly recognizes that such benefits constitute adequate
consideration for the covenants herein made; and
Whereas, the Board of Directors of the Company, having been fully advised, has
approved the benefits to be provided pursuant to this Agreement, upon the
conditions specified herein,
Now, therefore, in consideration of the premises and the mutual covenants set
forth herein, the Company and the Executive hereby agree as follows:
1. Term of Agreement:
(a) The term of this Agreement shall be ______ year(s), which term shall
commence as of the date first set forth above.
(b) The Company and the Executive may, by mutual agreement in writing, extend
the term of this Agreement from year to year. Failure to extend this
Agreement shall have no effect on the rights and obligations of the parties
that arose during the initial term of this Agreement or during any earlier
extension. For all purposes hereunder, the phrase "term of this Agreement"
shall include any extension of the initial term that is agreed to pursuant
to this paragraph.
2. Amount of Supplemental Retirement Benefits:
(a) Upon his retirement from the employment of the Company, and subject to
the provisions of Sections 6 through 9, inclusive, the Executive shall
receive a monthly supplemental retirement benefit equal to the product of:
(i) $_____ and (ii) the number of full years of his employment with the
Company during the term of this Agreement. Such supplemental retirement
benefits shall be payable for the period described in Section 2(b). For
purposes of this Section 2(a), the term "full year of employment during the
term of this Agreement" shall mean each period of 12 consecutive calendar
months beginning on the date first set forth above (and each anniversary
thereof) and ending on the next anniversary of such date, during which the
Executive was continuously employed by the Company.
(b) The monthly supplemental retirement benefits described in Section 2(a)
shall commence in the month following the month of the Executive's
retirement and shall continue to be paid each month, for a period of
fifteen (15) years, provided, however, that no benefits will be paid for
any period subsequent to the Executive's death, unless he has made an
election pursuant to Section 3(b) or unless benefits are payable in
accordance with Section 4 on account of his death while in the active
employment of the Company.
(c) The supplemental retirement benefits described in Section 2(a) shall be
payable in addition to any benefit payable to the Executive from any other
qualified or nonqualified retirement plan or deferred compensation
arrangement maintained by the Company, including, without limitation, the
Xxxxxxx-Xxxxxx Corporation Retirement Plan ("the Retirement Plan"), the
Xxxxxxx-Xxxxxx Corporation Savings and Investment Plan, the Xxxxxxx-Xxxxxx
Corporation Retirement Benefits Restoration Plan, the Xxxxxxx-Xxxxxx
Corporation 1995 Long-Term Incentive Plan, and the Xxxxxxx-Xxxxxx
Corporation Executive Deferred Compensation Plan.
3. Optional Forms of Payment of Supplemental Retirement Benefits:
(a) In lieu of the monthly payments described in Sections 2(a) and 2(b), the
Executive may elect to receive his supplemental retirement benefits in a
lump sum. The lump sum payable pursuant to this paragraph shall be the
actuarial equivalent of the monthly payments described in Sections 2(a) and
2(b), determined on the basis of the 1983 Group Annuity Mortality Table
using a fixed blend of 50% of the male and 50% of the female mortality
rates ("the Applicable Mortality Table"), and the interest rate in effect
for the first month in which monthly benefits would be payable under
Sections 2(a) and 2(b), for the purpose of determining lump sum payments
under the Retirement Plan, in accordance with Section 417(e) of the
Internal Revenue Code ("the Applicable Interest Rate"). In the event that
the Executive elects to receive his supplemental retirement benefits in a
lump sum, no further payments shall be made pursuant to this Agreement, but
the Executive shall remain subject to the provisions of Sections 7 and 8 of
this Agreement.
(b) In lieu of the monthly payments described in Sections 2(a) and 2(b), the
Executive may elect to receive his supplemental retirement benefits under a
100% joint and survivor option. The Executive shall be permitted to
designate the Beneficiary who would receive benefits under said joint and
survivor option in the event of the Executive's death. If the Executive
elects to receive his supplemental retirement benefits under the joint and
survivor option, and the Beneficiary whom he designated at the time of his
retirement from the employment of the Company survives at the time of his
death, monthly supplemental retirement benefit payments, in the same amount
as had been paid to the Executive during his life, will continue to be made
to his Beneficiary, provided, however, that no payments will be made for
any period subsequent to the death of his Beneficiary and, in any case,
payments will cease on the fifteenth (15th) anniversary of the first
payment made to the Executive pursuant to this Agreement. The amount of the
monthly supplemental retirement benefits payable under the joint and
survivor option will be the actuarial equivalent of the monthly payments
described in Sections 2(a) and 2(b), determined on the basis of the
Applicable Mortality Table, but with the age of the Executive set forward
by two (2) years, and the age of his Beneficiary set back by one (1) year,
and an interest rate of 7%. The amount so determined will not be adjusted
in the event that the Beneficiary of the Executive predeceases him.
(c) In the event that the Beneficiary of the Executive becomes entitled to
supplemental retirement benefits in accordance with Section 4, the
Beneficiary may elect to receive his or her supplemental retirement
benefits in a lump sum. The lump sum payable in accordance with this
paragraph shall be the actuarial equivalent as described in Section 3(a) of
the amount otherwise payable to such Beneficiary, determined on the basis
of the Applicable Mortality Table and the Applicable Interest Rate.
(d) At the request of the Executive, the Company shall make available a
calculation of the amount payable under the optional forms of supplemental
retirement benefits described in Sections 3(a) and 3(b), as of any proposed
retirement date. In the event that any benefits are payable to the
Beneficiary of the Executive in accordance with Section 4, the Company
shall make available a calculation of the amount payable under the optional
form described in Section 3(c).
(e) An election by the Executive to receive his supplemental retirement
benefits under the optional form described in Section 3(a) or 3(b) shall be
made in writing prior to or coincident with his retirement date and shall
become irrevocable on the date that he retires from the employment of the
Company. An election by the Beneficiary of the Executive to receive any
benefits otherwise payable to him or her in the optional form described in
Section 3(c) shall be made in writing after the death of the Executive
within sixty (60) days of the giving of notice in writing by the Company to
the Beneficiary of his or her right to make such election and shall be
irrevocable.
4. Benefits in the Event of Death Prior to Retirement:
In the event that the Executive dies while in the active employment of the
Company, prior to retirement, then supplemental retirement benefits shall be
paid to his Beneficiary in the same amount and for the same period as if the
Executive had retired on the day prior to his death and had made an election in
accordance with Section 3(b) in favor of his designated Beneficiary. The
Executive shall be permitted to designate his Beneficiary for purposes of
benefits payable under this Section 4 and shall be permitted to change such
designation at any time prior to his retirement from the employment of the
Company. Each such designation shall be in writing and shall be delivered to the
Company.
5. Benefits in the Event of Disability:
In the event that the Executive becomes disabled during the term of this
Agreement, while in the active employment of the Company, then, for all purposes
hereunder, he shall be deemed to remain in active employment until the
expiration of the term of this Agreement, provided, however, that no extension
of the term of this Agreement pursuant to the provisions of Section 1(b) shall
commence during any period in which the Executive is disabled. For purposes of
this Section, the Executive shall be deemed disabled, if he qualifies for
benefits under any short-term or long-term disability benefit program maintained
by the Company.
6. Effect of Termination by the Company:
(a) Notwithstanding any provision hereof, in the event that the employment of
the Executive with the Company is terminated by the Company, other than for
cause, the benefits payable hereunder shall be determined as if the
Executive had remained in the employment of the Company until the last day
of the term of this Agreement.
(b)Notwithstanding any provision hereof, no benefits will be payable
hereunder in the event that the employment of the Executive with the
Company is terminated by the Company for cause. For purposes of this
Section 6, termination for cause shall include, but shall not be
limited to: (1) Executive acting fraudulently in his relations with the
Company or on behalf of the Company, (2) Executive misappropriating or
doing material, intentional damage to the property of the Company, (3)
Executive being convicted of a felony, (4) Executive's acts or
omissions amounting to willful misconduct or recklessness by Executive
in the performance of his duties under this Agreement or the habitual
neglect of such duties which acts, omissions or neglect continued for a
period of thirty (30) days after a written demand for correction of
such situation was delivered to Executive, specifying the acts,
omissions or neglect and the circumstances involved, (5) Executive
failing to follow any material instruction or policy formally adopted
by the Company and communicated to Executive if Executive adheres to
such failure to follow such instruction or policy for a period of
thirty (30) days after delivery of written notice specifying the acts
or omissions constituting such failure, or (6) any material breach by
Executive of any of the terms of this Agreement.
7. Covenant Not to Compete:
Executive agrees that, for a period commencing on the date hereof and ending
fifteen (15) years after his retirement or the termination of this Agreement for
any reason, the Executive shall not, without the Company's prior written
consent, anywhere in North America, or anywhere that the Company's Metal
Improvement Company, Inc. subsidiary has done business under the supervision and
control of the Executive, directly or indirectly:
(a) engage, directly or indirectly, as an employee, director,
shareholder, officer, partner, consultant, independent
contractor or otherwise in any activity for or on behalf
of any person or entity in a competitive line of business
to that carried on by the Company, or engage in any manner
in the design, development, manufacturing, assembling,
installing, and/or marketing of any technology competitive
with the business carried on by the Company during the
Executive's employment with the Company, so long as the
Company is still carrying on said business;
(b) solicit or attempt to solicit business of any customers of
the Company (including prospective customers solicited by
the Company) for products or services the same as or
similar to those offered, sold, produced or under
development by the Company during the Executive's
employment with the Company, so long as the Company is
still carrying on said business;
(c) otherwise divert or attempt to divert from the Company any
business whatsoever, so long as the Company is still
carrying on said business;
(d) solicit or attempt to solicit for any business endeavor
any employee of the Company;
(e) interfere with any employment relationship or other
business relationship between the Company and any other
individual, person, or other entity;
(f) have any interest as a stockholder, partner, lender or
otherwise in, any person which is engaged in activities
which, if performed by the Executive would violate this
Section 7(a) other than an interest in a publicly traded
corporation not exceeding one percent of such
corporation's issued and outstanding voting stock; or
(g) disparage the Company, or its officers, directors,
employees, affiliates, or advisors.
(h) engage in any other activity of a professional or
consultative nature which (i) could reasonably be expected
to be detrimental to the business prospects of the Company
or (ii) which is or may be directly or indirectly
competitive with the Company.
In the event that any provisions of this Section 7 should be deemed to exceed
the time and geographical limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time and geographic limitations
permitted by applicable law.
8. Covenant to Maintain Confidentiality:
(a) In express consideration of the benefits provided under this
Agreement, Executive understands and acknowledges that as a result of
Executive's employment with the Company, and involvement with the business
of the Company, he is or shall necessarily become informed of, and have
access to, confidential information of the Company including, without
limitation, inventions, patents, patent applications, trade secrets,
technical information, know-how, plans, specifications, marketing plans and
information, pricing information, identity of customers and prospective
customers and identity of suppliers, and that such information, even though
it may have been or may be developed or otherwise acquired by Executive, is
the exclusive property of the Company to be held by Executive in trust and
solely for the Company's benefit. Executive shall not at any time, either
during or subsequent to his employment hereunder, reveal, report, publish,
transfer or otherwise disclose to any person, corporation or other entity,
or use, any of the Company's confidential information, without the prior
written consent of the Company's Chief Executive Officer, except for use on
behalf of the Company in connection with the Company's business, and except
for such information which legally and legitimately is or becomes of
general public knowledge from authorized sources other than Executive.
(b) Upon the termination of his employment with the Company for any reason,
Executive shall promptly deliver to the Company all drawings, manuals,
letters, notes, notebooks, reports and copies thereof and all other
materials, including, without limitation, those of a secret or confidential
nature, relating to the Company's business which are in Executive's
possession or control. The Company shall reimburse Executive for any
packing, shipping or moving costs reasonably incurred by Executive in
connection with the foregoing delivery.
9. Remedies and Survival:
(a) Because the Company does not have an adequate remedy at law to protect its
interest in its trade secrets, privileged, proprietary or confidential
information and similar commercial assets, or its employees from
solicitation by Executive, the Company shall be entitled to injunctive
relief, in addition to such other remedies and relief that would, in the
event of a breach or a threatened breach of the provisions of Sections 7 or
8 be available to the Company. The Company shall not be required to plead
or prove the inadequacy of damages. The provisions of Sections 7 and 8 and
this Section 9 shall survive any termination of Executive's employment with
the Company for any reason whatsoever.
(b) In the event that the Executive breaches the covenants set forth in
Sections 7 and 8, no further payments will be made pursuant to this
Agreement and the Company shall be entitled to recover all payments
made pursuant to this Agreement prior to such breach. The right of
recovery pursuant to this paragraph shall be in addition to and not in
limitation of the right of the Company to relief under Section 9(a) and
to any other remedy for the conduct of the Executive that constituted
the breach of the covenants set forth in Sections 7 and 8.
10. Relationship to Other Agreements between the Executive and the Company:
The covenants and obligations hereby undertaken by the Executive and the Company
are in addition to and shall not limit the effect of any other agreement entered
into by the Executive and the Company that addresses the terms and conditions of
the Executive's employment, and the benefits payable hereunder are in addition
to, and not in limitation of, any benefits or compensation to which the
Executive may otherwise be entitled to by virtue of his employment with the
Company. Nothing contained in this Agreement shall confer upon the Executive any
right to be continued in the employ of the Company nor require the Executive to
continue in such employ.
11. Governing Law:
This Agreement is made in and shall be governed by the laws of the State of New
Jersey, without regard to conflict of laws principles.
12. Severability:
If any provision of this Agreement is held to be invalid or unenforceable by any
court or tribunal of competent jurisdiction, the remainder of this Agreement
shall not be affected by such judgment, and such provision shall be carried out
as nearly as possible according to its original terms and intent to eliminate
such invalidity or unenforceability.
13. Entire Agreement:
This Agreement sets forth the entire understanding of the parties hereto with
respect to its subject matter, merges and supersedes any prior or
contemporaneous agreements or understandings with respect to its subject matter,
and shall not be modified or terminated except by another agreement in writing
executed by the Company and Executive. Failure of a party to enforce one or more
of the provisions of this Agreement or to require at any time performance of any
of the obligations hereof shall not be construed to be a waiver of such
provisions by such party or to affect the validity of this Agreement or such
party's right thereafter to enforce any provision of this Agreement, or to
preclude such party from taking any other action at any time which it would
legally be entitled to take.
14. Arbitration:
(a) In the event a dispute, claim or controversy shall arise between the
Executive and the Company with respect to any provision of this
Agreement or the interpretation or performance thereof, and such is
declared by written notice from one party to the other, the Executive
and the Company agree to negotiate in good faith toward resolution of
the dispute. If such dispute cannot be resolved within a period of
sixty (60) days after such notice is given, either party may submit the
dispute to arbitration. Such dispute, including any dispute concerning
arbital jurisdiction or arbitability, shall then be settled by
arbitration in accordance with the applicable Arbitration Rules of the
American Arbitration Association ("AAA"). The arbitration shall be held
in New Jersey. The arbitration will be decided by a single arbitrator,
mutually acceptable to both parties, who will preside and decide the
controversy or claim unless the parties hereto agree in writing to the
contrary. Should the parties fail to agree on a mutually acceptable
arbitrator, then the parties agree to accept an arbitrator appointed by
the AAA.
(b) The award rendered by the arbitrator shall be in writing and shall be
the final disposition on the merits. Judgment upon the award rendered
may be in any court having jurisdiction, or application may be made to
any such court for a judicial acceptance of the award and an order of
enforcement as the case may be.
15. Successors and Assigns:
Neither party shall have the right to assign this personal Agreement, or any
rights or obligations hereunder, without the consent of the other party;
provided, however, that upon the sale or transfer of all or substantially all of
the assets and business of the Company to another party, or upon the merger or
consolidation of the Company with, or acquisition of the Company by, another
corporation or entity, this Agreement shall inure to the benefit of, and be
binding upon, both Executive and the party purchasing such assets and business,
or surviving such merger or consolidation or acquiring the Company, as the case
may be, in the same manner and to the same extent as though such other party
were the Company. Subject to the foregoing, this Agreement shall inure to the
benefit of, and bind, the parties hereto and their legal representatives, heirs,
successors and assigns.
16. Notices
All notices or other communications which any party desires or is required to
give shall be given in writing and shall be deemed to have been given if
hand-delivered, sent by overnight courier service or telecopier, or mailed by
depositing in the United States mail, prepaid to the party at the address noted
below or such other address as a party may designate in writing from time to
time:
For Xxxxxxx-Xxxxxx Corporation:
Office of General Counsel
Xxxxxxx-Xxxxxx Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
For the Executive:
In witness whereof, the parties hereto have executed this Supplemental
Retirement Benefits Agreement, as of the year and date first set forth above:
Xxxxxxx-Xxxxxx Corporation
By:________________________________
Executive:_________________________
