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EXHIBIT 10.j
February 28, 1995
Dear
As you know, our company's Board of Directors has adopted a Plan
whereby supplemental retirement and other benefits, in addition to those
provided under the Company's pension and other benefit plans, will be made
available to those Company and subsidiary executives as may be designated from
time to time by the company's Chief Executive Officer. You have been previously
designated as a participant in the Plan by a letter agreement signed by you and
dated February 12, 1992. This agreement amends and replaces in its entirety your
previously signed letter agreement and describes in full your benefits pursuant
to the Plan and all of the Company's obligations to you and yours to the Company
under the Plan. These benefits as described below are contractual obligations of
the Company.
For the purposes of this Agreement, words and terms are defined as
follows:
a. "Retirement" shall mean your termination of employment with the
Company, on or after you attain age 65. Your acting as a
consultant shall not be considered employment.
b. "Average Compensation" shall mean the aggregate of your highest
three years' total annual cash compensation paid to you by the
Company, consisting of (i) base salaries and (ii) regular year-end
cash bonuses paid with respect to the years in which such salaries
are paid, divided by three.
c. If you become Disabled, "Total Compensation" shall mean your
annual base salary rate in the year in which you become Disabled
plus the regular year-end cash bonus paid to you for the year
immediately prior thereto.
d. "Surviving Spouse" shall be the person to whom you shall be
legally married (under the law of the jurisdiction of your
permanent residence) at the date of (i) your Retirement or death
after attaining age 65 (if death terminated employment with the
Company) for the purposes of paragraphs 1, 2 and 3, (ii) your
death for the purposes of paragraph 5, and (iii) your Disability
for the purposes of paragraphs 6 and 7. For the purposes of
paragraphs 10a, 10e, 10f, 10g and 10h, "Surviving Spouse" shall be
any spouse entitled to survivor's benefits.
e. "Disability" and "Disabled" shall mean your being unable to
perform your duties as a Company executive by reason of your
physical or mental condition, prior to your attaining age 65,
provided that you have been employed by the Company for two
consecutive Years or more.
f. "Company" shall mean Masco Corporation or any corporation in which
Masco Corporation or a subsidiary owns stock possessing at least
20% of the total combined voting power of all classes of stock.
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g. "Year" shall mean twelve full consecutive months, and "year" shall
mean a calendar year.
h. "Plan Limitation" for any year shall mean (x) for 1989, $300,000
multiplied by the Cost of Living Factor for 1988, and (y) for any
year subsequent to 1989, the Plan Limitation for the immediately
preceding year multiplied by the Cost of Living Factor for such
preceding year.
i. "Cost of Living Factor" for any year shall mean, except as
otherwise provided generally with respect to the Plan by the
Company's Board of Directors, the quotient (in no event to exceed
1.03 or to be less than .97) obtained by dividing the monthly
Consumer Price Index Number (as compiled in the Consumer Price
Index for Urban Consumers by the Bureau of Labor Statistics) for
the month of December in such year by the monthly Consumer Price
Index Number for the immediately preceding month of December.
j. A "Change in Control" shall be deemed to have occurred if, during
any period of twenty-four consecutive calendar months, the
individuals who at the beginning of such period constitute the
Company's Board of Directors, and any new directors whose election
by such Board or nomination for election by stockholders was
approved by a vote of at least two-thirds of the members of such
Board who were either directors on such Board at the beginning of
the period or whose election or nomination for election as
directors was previously so approved, for any reason cease to
constitute at least a majority of the members thereof.
1. In accordance with the Plan, upon your Retirement the Company will
pay you annually during your lifetime 60% of your Average Compensation, less:
(i) a sum equal to the annual benefit which would be payable to you upon your
Retirement if benefits payable to you under the Company funded qualified pension
plans and the defined benefit (pension) plan restoration provisions of the
Company's Retirement Benefits Restoration Plan and any similar plan were
converted to a life annuity, or if you are married when you retire, to a joint
and spouse survivor life annuity, (ii) a sum equal to the annual benefit which
would be payable to you upon Retirement if your vested accounts in the Company's
Future Service Profit Sharing Trust and the defined contribution (profit
sharing) restoration provisions of the Company's Retirement Benefits Restoration
Plan and any similar plan were converted to a life annuity, and (iii) any
retirement benefits payable to you by reason of employment by your prior
employers (excluding, however, from such deduction any portion thereof, and
earnings thereon, determined by the committee referred to in paragraph 10 to
have been contributed by you rather than your prior employers). In all cases the
amount offset pursuant to these subsections (i) and (ii) shall be determined
prior to the effect of any payments from the plans and trust referred to therein
which are authorized pursuant to a Qualified Domestic Relations Order under
ERISA.
2. Upon your death after Retirement or while employed by the Company
after attaining age 65, your Surviving Spouse shall receive for life 75% of the
annual benefit pursuant to paragraph 1 of this Agreement which was payable to
you prior to your death (or, if death terminated employment after attaining age
65, which would have been payable to you had your Retirement occurred
immediately prior to your death).
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3. Upon your Retirement the Company will provide or purchase for you
and your spouse's benefit, or at its option reimburse you or your Surviving
Spouse for premiums paid, during your joint and several lives, such supplemental
medical insurance as the Company may deem advisable from time to time.
4. Under no circumstances (i) will any retirement benefits be paid to
you or your Surviving Spouse pursuant to this Agreement unless you were employed
by the Company or Disabled on your Retirement, or were employed by the Company
at the time of your death after attaining age 65, and (ii) will you or your
Surviving Spouse be entitled to receive retirement benefits under this Agreement
if your Retirement commences prior to your attaining age 65.
5. If while employed by the Company you die prior to your attaining
age 65 leaving a Surviving Spouse, and provided you shall have been employed by
the Company for two consecutive Years or more, your Surviving Spouse shall
receive annually for life 45% of your Average Compensation, less: (i) a sum
equal to the annual benefit which would be payable to your Surviving Spouse
under Company funded qualified pension plans and the defined benefit (pension)
plan restoration provisions of the Company's Retirement Benefits Restoration
Plan and any similar plan if such benefit were converted to a life annuity, and
(ii) a sum equal to the annual payments which would be received by your
Surviving Spouse as if your spouse were designated as the beneficiary of your
vested accounts in the Company's Future Service Profit Sharing Trust and the
defined contribution (profit sharing) restoration provisions of the Company's
Retirement Benefits Restoration Plan and any similar plan and such accounts were
converted to a life annuity. In all cases the amount offset pursuant to these
subsections (i) and (ii) shall be determined prior to the effect of any payments
from the plans and trust referred to therein which are authorized pursuant to a
Qualified Domestic Relations Order under ERISA. No death benefits are payable
except to your Surviving Spouse.
6. If you shall have been employed by the Company for two Years or
more and while employed by the Company you become Disabled prior to your
attaining age 65, until the earlier of your death, termination of Disability or
attaining age 65 the Company will pay you an annual benefit equal to 60% of your
Total Compensation less any benefits payable to you pursuant to long-term
disability insurance or other plans the cost of which is paid by the Company. If
your Disability continues until you attain age 65, you shall be considered
retired and you shall receive retirement benefits pursuant to paragraph 1 above,
based upon your Average Compensation as of the date it is determined you became
Disabled.
7. If you die leaving a Surviving Spouse while receiving Disability
benefits pursuant to paragraph 6 of this Agreement, notwithstanding paragraph 4
you will be deemed to have retired on your death and your Surviving Spouse shall
receive for life 75% of the annual benefit which would have been payable to you
if you had retired on the date of your death and your benefit determined
pursuant to paragraph 1, based upon your Average Compensation as of your
becoming Disabled.
8. Notwithstanding any of the provisions of this Agreement, the
maximum retirement, disability and death benefits payable to you and your spouse
pursuant to this Agreement for any year shall in no event exceed the higher of
(A) $500,000 less those sums to be deducted from benefits pursuant to clauses
(i), (ii) and (iii) of paragraph 1, clauses (i) and (ii) of paragraph 5, or
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under paragraph 6, whichever is applicable, or (B) the Plan Limitation for the
year in which such benefits were first paid, less the aggregate annual benefit
with respect to the Company's Retirement Benefits Restoration Plan (and any
future non-qualified retirement plan) to be deducted (x) under clauses (i) and
(ii) of paragraph 1, (y) under paragraph 5 should you die while employed prior
to attaining age 65 or (z) under paragraph 6 should you become disabled prior to
attaining age 65.
9. If you are eligible to receive benefits hereunder, unless
otherwise specifically agreed by the Company in writing, you will not be able to
receive benefits under any other Company sponsored non-qualified retirement
plans other than the Company's Retirement Benefits Restoration Plan.
10. We also agree upon the following:
a. The Compensation Committee of the company's Board of Directors, or
any other committee however titled which shall be vested with
authority with respect to the compensation of the company's
officers and executives, shall have the exclusive authority to
make all determinations which may be necessary in connection with
this Agreement including the date of and whether you are
Disabled, the amount of annual benefits payable to you by reason
of employment by other employers, the interpretation of this
Agreement, and all other matters or disputes arising under this
Agreement. The determinations and findings of the Compensation
Committee or such other committee of the company's Board of
Directors shall be conclusive and binding, without appeal, upon
both of us.
b. You will not during your employment or Disability, and after
Retirement or the termination of your employment, for any reason
disclose or make use of for your own or another person's benefit
under any circumstances any of the Company's Proprietary
Information. Proprietary Information shall include trade secrets,
secret processes, information concerning products, developments,
manufacturing techniques, new product or marketing plans,
inventions, research and development information or results,
sales, pricing and financial data, information relating to the
management, operations or planning of the Company and any other
information treated as confidential or proprietary.
c. If your employment by the Company shall terminate for any reason
whatsoever prior to your Retirement other than by reason of your
death or Disability, for a period of two years after the
termination of your employment, and if your employment shall be
terminated by reason of Retirement or any Disability during such
time as you shall receive retirement or disability benefits
pursuant to this Agreement, you agree that you will not directly
or indirectly engage in any business activities, whether as a
consultant, advisor or otherwise, in which the Company is engaged
in any geographic area in which the products or services of the
Company have been sold, distributed or provided during the five
year period prior to the date of termination of employment or
Retirement.
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In addition to the foregoing and provided no "Change in Control"
has occurred, if while you are receiving retirement or other
benefits pursuant to this Agreement, in the judgment of the
committee you directly or indirectly engage in activity or act in
a manner which can be considered adverse to the interest of the
Company or any of its direct or indirect subsidiaries or
affiliated companies, the committee may terminate your rights to
any further benefits hereunder.
d. Except as may be provided to the contrary in a duly authorized
written agreement between yourself and the Company you acknowledge
that the Company has made no commitments to you of any kind with
respect to the continuation of your employment, which we expressly
agree is an employment at will, and you or the Company shall have
the unrestricted right to terminate your employment with or
without cause, at any time in your or its discretion.
e. At the Company's request, expressed through a Company officer, you
agree to provide such information with respect to matters which
may arise in connection with this Agreement as may be deemed
necessary by the Company or the Compensation or other committee,
including for example only and not in limitation, information
concerning benefits payable to you from third parties, and you
further agree to submit to such medical examinations by duly
licensed physicians as may be requested by the Company or such
committee from time to time. You also agree to direct third
parties to provide such information, and your Surviving Spouse's
cooperation in providing such information is a condition to the
receipt of survivor's benefits under this Agreement.
f. To the extent permitted by law, no interest in this Agreement or
benefits payable to you or to your Surviving Spouse shall be
subject to anticipation, or to pledge, assignment, sale or
transfer in any manner nor shall you or your Surviving Spouse have
the power in any manner to charge or encumber such interest or
benefits, nor shall such interest or benefits be liable or subject
in any manner for the liabilities of you or your Surviving
Spouse's debts, contracts, torts or other engagements of any kind.
g. No person other than you and your Surviving Spouse shall have any
rights or property interest of any kind whatsoever pursuant to
this Agreement, and neither you nor your Surviving Spouse shall
have any rights hereunder other than those expressly provided in
this Agreement. Upon the death of you and your Surviving Spouse no
further benefits of whatsoever kind or nature shall accrue or be
payable pursuant to this Agreement.
h. All benefits payable pursuant to this Agreement shall be paid in
installments of one-twelfth of the annual benefit, or at such
shorter intervals as may be deemed advisable by the Company in its
discretion, upon receipt of your or your Surviving Spouse's
written application, or by the applicant's personal representative
in the event of disability.
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i. All benefits under this Agreement shall be payable from the
Company's general assets, which assets are subject to the claims
of general creditors, and are not set aside for your or your
Surviving Spouse's benefit.
j. This Agreement shall be governed by the laws of the State of
Michigan.
11. We have agreed that the determinations of the committee described
in paragraph 10a shall be conclusive as provided in such paragraph, but if for
any reason a claim is asserted which subverts the provisions of paragraph 10a,
we agree that, except for causes of action which may arise under paragraph 10b
and the first paragraph of paragraph 10c, arbitration shall be the sole and
exclusive remedy to resolve all disputes, claims or controversies which could be
the subject of litigation (hereafter referred to as "dispute") involving or
arising out of this Agreement. It is our mutual intention that the arbitration
award will be final and binding and that a judgment on the award may be entered
in any court of competent jurisdiction and enforcement may be had according to
its terms.
The arbitrator shall be chosen in accordance with the commercial
arbitration rules of the American Arbitration Association and the expenses of
the arbitration shall be borne equally by the parties to the dispute. The place
of the arbitration shall be the principal offices of the American Arbitration
Association in the metropolitan Detroit area. The arbitrator's sole authority
shall be to apply the clauses of this Agreement.
We agree that the provisions of this paragraph 11, and the decision of the
arbitrator with respect to any dispute, with only the exception provided in this
paragraph 11, shall be the sole and exclusive remedy for any alleged cause of
action in any manner based upon or arising out of this Agreement. Subject to the
foregoing exception, we acknowledge that since arbitration is the exclusive
remedy, neither of us or any party claiming under this Agreement has the right
to resort to any federal, state or local court or administrative agency
concerning any matters dealt with by this Agreement and that the decision of the
arbitrator shall be a complete defense to any action or proceeding instituted in
any tribunal or agency with respect to any dispute. The arbitration provisions
contained in this paragraph shall survive the termination or expiration of this
Agreement, and shall be binding on our respective successors, personal
representatives and any other party asserting a claim based upon this Agreement.
We further agree that any demand for arbitration must be made within
one year of the time any claim accrues which you or any person claiming
hereunder may have against the Company; unless demand is made within such period
it is forever barred.
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We are pleased to be able to make this supplemental plan available to
you. Please examine the terms of this Agreement carefully and at your earliest
convenience indicate your assent to all of its terms and conditions by signing
and dating where provided below and returning a signed copy to me.
Sincerely,
MASCO CORPORATION
By/s/Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
Chief Executive Officer
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DATE:
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