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Exhibit 10(b)
SALARY CONTINUATION AGREEMENT
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THIS SALARY CONTINUATION AGREEMENT (the "Agreement"), made as
of the 28th day of March, 1991, by and between INVETECH Company, a Michigan
corporation (hereinafter called the "Company"), and J. Xxxxxxx Xxxxx
(hereinafter called "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires that Employee remain in its
service to receive the benefit of Employee's knowledge, experience, reputation
and contacts after his retirement, and is willing to provide Employee an
incentive to do so in the form of compensation upon his death, permanent
disability or retirement; and
WHEREAS, the Company and Employee entered into a certain
Salary Continuation Agreement dated as of September 9, 1981, which was
superseded and replaced in its entirety by a Salary Continuation Agreement,
dated as of August 27, 1987 (the "Former Agreement"); and
WHEREAS, the Company and Employee desire to terminate the
Former Agreement and to replace it in its entirety by this Agreement; and
NOW, THEREFORE, in consideration of Employee's extensive past
service to the Company and contributions to the Company's accomplishments to the
date hereof and of the mutual promises of the parties hereto, the parties agree
as follows:
1. TERMINATION OF SALARY CONTINUATION AGREEMENT. The Former
Agreement is hereby terminated and this Agreement shall supersede and replace
the Former Agreement in its entirety.
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2. CONTINUATION OF EMPLOYMENT. This Agreement and all rights
of the Employee hereunder shall terminate on the date upon which Employee ceases
to be an active employee of the Company, (except by reason of Employee's death,
Retirement Date or Disability Date as hereinafter defined). In addition,
Employee shall not be deemed to have ceased to be an active employee of the
Company within the meaning of this paragraph and Employee shall be entitled to
all benefits of this Agreement if the Employee's employment is terminated by the
Employee or by the Company for any reason whatsoever at any time following any
"change in control" (as hereinafter defined).
For purposes of this Agreement, a "change in control" shall be
deemed to have occurred on:
(a) The date on which title or voting rights with respect to
more than fifty percent (50%) of the voting securities of the Company
become owned by any parties or entities other than the existing holders
of record of the Company's voting common stock as of the date hereof
(provided that transfer of shares to one or more members of a
shareholder's immediate family by INTER VIVOS or testamentary
disposition shall not be deemed a change in ownership); or
(b) The date on which the Company is either acquired by and/or
merged with another organization or corporate entity owned or
controlled by parties or entities other than the existing holders of
record of the Company's voting common stock as of the date hereof,
resulting in the Company's voting common stock not being the surviving
voting common stock subsequent to the establishment of the merged
organization; or
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(c) The date on which more than fifty percent (50%) in value
of the assets of the Company are disposed of by the Company pursuant to
a partial or complete liquidation, a sale of assets or otherwise.
3. PAYMENTS UPON DEATH, RETIREMENT OR DISABILITY.
(a) DEFINITIONS. For purposes of this Agreement, the following
definitions shall apply:
(i) RETIREMENT DATE. Employee's Retirement Date
hereunder shall be the first day of the first month following
his sixty-fifth (65th) birthday or, if he remains in the
employ of the Company after such date (as may be mutually
agreed upon by Employee and Company), the first day of the
first month following Employee's official retirement.
(ii) DISABILITY DATE. Employee's Disability Date
hereunder shall be the first date that Employee suffers a
Permanent Disability as defined in the Company's disability
insurance policy then in effect. If no disability insurance
policy is then in effect, Permanent Disability means the
inability of Employee to perform the principal duties of his
occupation. Employee's occupation means his regular occupation
at the time such disability began. Employee shall not be
considered totally disabled unless he establishes that he is
under the care and attendance of a licensed physician during
any period of claimed disability.
(b) BENEFITS FOLLOWING DEATH. If Employee dies prior to
reaching his Retirement Date or Disability Date, the Company agrees to
pay to the trustee or trustees under any revocable living trust
agreement executed by Employee as grantor or any other beneficiary
designated by Employee in writing and approved by the board of
directors of
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the Company the sum of Two Hundred Thousand Dollars ($200,000) per
year, for a period of fifteen (15) years, in equal monthly installments
of $16,666.67 payable upon the first business day of each calendar
month commencing the first business day of the month following the
month in which Employee dies and continuing until a total of one
hundred eighty (180) installments have been paid.
(c) BENEFITS FOLLOWING RETIREMENT OR PERMANENT DISABILITY.
Commencing on Employee's Retirement Date or Disability Date, the
Company shall pay to Employee or to the trustee or trustees under any
revocable living trust agreement executed by Employee as grantor and as
to which Employee is the beneficiary during his lifetime, the sum of
Two Hundred Thousand Dollars ($200,000) per year, for a period of
fifteen (15) years, in equal monthly installments of $16,666.67 payable
on the first business day of each calendar month following Employee's
Retirement Date or Disability Date, as the case may be, and continuing
until a total of one hundred eighty (180) monthly installments have
been paid. If Employee shall die prior to receiving on hundred eighty
(180) such monthly payments, the Company shall continue to make such
payments to the trustee or trustees under any revocable living trust
agreement executed by Employee as grantor or any other beneficiary
designated by Employee in writing and approved by the board of
directors of the Company until a total of one hundred eighty (180) such
monthly payments have been made.
Notwithstanding anything contained herein to the contrary, the
Company's payment obligations under this Agreement shall be reduced by
the amount of any disability income insurance proceeds received or
receivable by Employee, resulting from any policy or policies paid for
by the Company. Furthermore, in the event that Employee
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is no longer deemed to suffer a Permanent Disability as determined
above, all further payments under this Agreement shall cease
immediately; provided, however, upon Employee's subsequent death,
Retirement Date or new Disability Date, no reduction against the one
hundred eighty (180) maximum monthly payments shall be made to reflect
those payments made during the prior period or periods of Permanent
Disability.
4. SERVICES AFTER RETIREMENT. Following Employee's Retirement
Date or Disability Date, Employee shall, to the extent his physical and mental
condition reasonably permits, consult, or by available to consult, with the
officers of the Company in an advisory capacity at such times and places as the
parties hereto shall mutually agree.
5. RESTRICTIVE COVENANT. During any period in which Employee
receives payments pursuant to this Agreement, Employee shall not directly
compete with the Company nor shall the Employee consult with or be employed by a
direct competitor of the Company which does business in any state in which the
Company is qualified to do business.
6. FORFEITURE OF PAYMENTS. In the event that Employee violates
the provision set forth in Section 4 of this Agreement, and such violation
remains uncured for thirty (30) days following receipt by Employee of notice to
perform by the board of directors of the Company, or in the event that Employee
violates the condition set forth in Section 5 of this Agreement, and such
violation remains uncured for fifteen (15) days following receipt by Employee of
notice of such violation from the board of directors of the Company, then such
violation shall constitute a breach of this Agreement, and no further payments
shall be due or payable by the Company thereafter and the Company shall have no
further liability whatsoever.
7. NOTICES. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be deemed to be duly given when
personally delivered to
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the principal office of the Company or to Employee, as appropriate, or when
delivered by registered or certified mail, postage prepaid, to such address as
the respective party may by notice direct.
8. ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all other agreements, written or otherwise. This Agreement may not be
changed or extended (including additions and deletions) orally or otherwise,
except by an agreement or consent in writing signed by both parties hereto.
8. SUCCESSORS AND ASSIGNS. The duties and obligations of
Employee under this Agreement are personal unto Employee and may not be assigned
or otherwise transferred, but the rights of Employee under this Agreement shall
inure to the benefit of Employee, his heirs, executors, administrators, personal
representatives, successors and assigns. The rights and duties of the Company
under this Agreement shall be binding upon and inure to the benefit of the
Company's successors and assigns. The Company shall require any successor
(whether direct or indirect, by operation of law or by purchase, merger,
consolidation or otherwise) to all or substantially all of the business, stock
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
10. ENFORCEABILITY. If any term or provision of this
Agreement, or the application thereof to any circumstances, shall, to any extent
and for any reason, be held invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to circumstances other
than those to which it is held to be invalid or unenforceable, shall not be
affected thereby and shall be construed as if such invalid or unenforceable term
or provision had
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never been contained herein, and each term and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law. If any portion
of this Agreement is held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting or
reducing the provision as required so that the provision as limited or reduced
is enforceable under applicable law.
11. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with laws of the State of Michigan.
12. ARBITRATION. Any dispute or controversy arising under or
in connection with this Agreement, including, but not limited to, any claim by
the Employee that a determination by the board of directors of the Company
pursuant to Section 6 hereof is incorrect, shall be submitted to, and settled
exclusively by, arbitration in Detroit, Michigan in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; PROVIDED, HOWEVER, that
Employee shall be entitled to be paid during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
EMPLOYEE INVETECH COMPANY
/s/ J. Xxxxxxx Xxxxx By: /s/ X. X. Xxxxx, XX
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J. Xxxxxxx Xxxxx
Its: President
