EXHIBIT 10.6(b)
1996 10-K
SUPPLEMENTAL RETIREMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of this 31st day of March,
1996, but effective as of the 2nd day of January, 1995, by and between
The Manitowoc Company, Inc., a Wisconsin corporation (the "Company")
and Xxxxxx X. Xxxxx ("Executive").
R E C I T A L S:
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A. Executive is employed by the Company as its Executive Vice
President and Chief Operating Officer;
B. The Company desires to have the benefit of Executive's
continued loyalty, service and counsel until his retirement; and
C. The parties are entering into this Agreement to provide
Executive with an added incentive to remain with the Company until
completion of FY 1996.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the meanings assigned to them:
(a) "Cause" in connection with the termination by the Company of
the employment of Executive means Executive's persistent
failure to follow the Company's written directives and
policies, or insubordination, willful malfeasance, gross
negligence or acts of dishonesty by Executive.
(b) "Normal Retirement" means the termination of Executive's
employment with the Company for any reason (including by
reason of death), if such termination occurs on or after the
attainment by Executive of age 68.
(c) "Change in Control of the Company" shall have the same meaning
as the phrase "change in control of the Company" in the
Contingent Employment Agreement between the Company and
Executive dated as of December 29, 1988.
(d) "Full Monthly Benefit" means one-twelfth of $125,000.
(e) "Reduced Monthly Benefit" means the Full Monthly Benefit,
reduced by two percent (2%) for each full month by which
Executive's employment with the Company terminates prior to
his attainment of age 68; provided, however, that if the
Company terminates Executive's employment for other than
Cause prior to attainment of age 68, but on or after a
Change in Control of the Company, the Reduced Monthly
Benefit shall be equal to 70% of the Full Monthly Benefit.
(f) "Early Retirement" means the voluntary termination of
Executive's employment with the Company, if such termination
occurs prior to the attainment by Executive of age 68 and
prior to a Change in Control of the Company.
2. Normal Retirement. Upon Normal Retirement, Executive shall be
paid the Full Monthly Benefit, in the form provided in Section 6
hereof.
3. Early Retirement. Upon Early Retirement, Executive will be
paid the Reduced Monthly Benefit, in the form provided in Section 6
hereof.
4. Termination of Employment Prior to Age 68. Upon the death of
Executive prior to his attainment of age 68, or upon termination by
the Company of Executive's employment for other than Cause prior to
his attainment of age 68, Executive shall be paid the Reduced Monthly
Benefit, in the form provided in Section 6 hereof.
5. Change in Control. Upon termination by the Company of
Executive's employment for other than Cause prior to his attainment of
age 68 but on or after a Change in Control, Executive shall be paid
the Reduced Monthly Benefit, in the form provided in Section 6 hereof.
6. Form of Benefit Payments. The Full Monthly Benefit or the
Reduced Monthly Benefit, as applicable, shall be payable to Executive
pursuant to Section 2, 3, 4, or 5 hereof in the form of a joint and
100% survivor annuity, such that the Full Monthly Benefit or Reduced
Monthly Benefit, as applicable, will be payable to Executive during
his lifetime, and upon Executive's death to his spouse for her
lifetime if she survives him, commencing on the first day of the first
full calendar month following Executive's termination of employment
and on the first day of each succeeding calendar month. No actuarial
reduction shall be made to the Full Monthly Benefit or Reduced Monthly
Benefit by virtue of the joint and 100% survivor feature.
7. Rabbi Trust. At any time after there has occurred an event
which entitles Executive to begin to receive payments pursuant to the
joint and 100% survivor annuity referred to in Section 6, Executive
may require the Company to establish a so-called "rabbi trust" for the
purpose of providing additional assurance to Executive that the
Company's obligations hereunder will be met. Such trust shall be
established within thirty (30) days following written notice from
Executive that he desires to have such trust established. The trustee
of such rabbi trust shall be a bank or trust company located in the
United States. The trust agreement creating such trust shall contain
terms which are customarily associated with such trusts, including
terms to ensure that the Company is treated as the grantor of the
trust for federal income tax purposes. Contemporaneously with the
establishment of such trust, the Company will deposit with the trustee
of such trust an amount equal to the present value of the joint and
100% survivor annuity referred to in Section 6.
8. Actuarial Calculations. Xxxxxx Associates (or if it is unable
or declines to act, such other nationally recognized benefits
consulting firm as Company may designate) shall calculate the Full
Monthly Benefit or Reduced Monthly Benefit, as applicable and the
present value of such annuity in connection with the establishment of
the rabbi trust referred to in Section 7, and such calculations shall
be binding and conclusive on the parties. In calculating the
foregoing amounts, Xxxxxx Associates or other benefits consulting firm
shall use an 8% annual interest rate, the 1983 Group Annuity Mortality
Table and such other actuarial assumptions as may be necessary in the
sole discretion of Xxxxxx Associates or such other benefits consulting
firm.
9. Unfunded Plan. Nothing contained in this Agreement and no
action taken pursuant to its terms shall create or be construed to
create a trust of any kind or any fiduciary relationship between the
Company and Executive or any other person. This Agreement and the
benefits payable hereunder shall at all times be unfunded, and the
rights of Executive or any other person to any payments hereunder
shall be those of an unsecured creditor.
10. Non-alienation. The right of Executive or any other
person to the payment of amounts under this Agreement shall not be
assignable or transferable or subject to any sale, mortgage, lien,
pledge, hypothecation, anticipation, garnishment, attachment,
execution or levy of any kind, whether by operation of law or
otherwise.
11. No Guarantee of Employment. Nothing contained in this
Agreement shall be construed as conferring upon Executive the right to
continue in the employment of the Company.
12. Effect on Other Plans. Unless otherwise required by law,
amounts payable to Executive hereunder shall not constitute
"compensation" for the purpose of computing benefits under any
retirement plans or welfare benefit plans which may be maintained by
the Company for the benefit of Executive, except that Executive shall
not be eligible to participate in the Company Profit Sharing Plan.
13. Limitation on Liability. No member of the Board of
Directors of the Company or any Committee thereof, and no officer,
employee or agent of the Company, shall be liable to Executive or
other person for any action taken or omitted in connection with this
Agreement, unless attributable to such individual's fraud, willful
misconduct or gross negligence.
14. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Company and its successors and
assigns, and Executive and his beneficiaries, heirs and legal
representatives.
15. Severability. If any of the provisions of this Agreement
shall be held to be invalid, or shall be determined to be inconsistent
with the purpose of this Agreement, the remainder of this Agreement
shall not be affected thereby.
16. Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws by the State of
Wisconsin.
17. Complete Agreement. This Agreement constitutes the
complete agreement between the Company and Executive concerning its
subject matter, and may be amended only by a written instrument signed
by each of them. Nothing contained herein affects in any way the
Contingent Employment Agreement between Executive and the Company
dated as of December 29, 1988, which remains in full force and effect.
18. Withholding. The Company shall have the right to deduct
from any payments hereunder any taxes required by law to be withheld.
19. Effectiveness. This Agreement shall not become effective
until it is approved by the Board of Directors of the Company,
notwithstanding the earlier execution by the Company and Executive.
IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement as of the date first written above.
THE MANITOWOC COMPANY, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President & CEO
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
