96
EXHIBIT 10(i)
SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
THIS AGREEMENT is made as of __________________, 1999, between Xxxxx
Bros. Corporation, a Delaware corporation ("Greif Bros.") and
_________________________ ("Executive").
BACKGROUND INFORMATION
A. The Executive is a key employee of Xxxxx Bros. and it is expected
that he will continue to contribute substantially to the growth and success
of Xxxxx Bros. during his employment. In order to assure to Xxxxx Bros.
the continued benefit of the experience, advice, ability and services of
the Executive, Xxxxx Bros. is willing to provide to the Executive, on the
terms and conditions set forth herein, the supplemental retirement benefits
described in this Agreement, in consideration of the execution of a
confidentiality and non-competition agreement.
X. Xxxxx Bros. maintains the Xxxxx Bros. Corporation Employees'
Retirement Income Plan (the "Pension Plan"), a qualified defined benefit
pension plan under Sections 401(a) and 501(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), for certain employees of Xxxxx Bros.
C. Sections 401(a)(17) and 415 of the Code place certain limitations
on the amount of benefits that would otherwise be made available under the
Pension Plan for certain participants, including the Executive.
D. This Agreement is intended to provide a supplemental retirement
benefit to the Executive in excess of the benefits provided under the
Pension Plan.
AGREEMENT
Xxxxx Bros. and the Executive acknowledge the accuracy of the
foregoing Background Information and agree as follows:
97
EXHIBIT 10(i)
(continued)
ARTICLE I - DEFINITIONS
Words and phrases used herein with initial capital letters which are
defined in the Pension Plan are used herein as so defined, unless otherwise
specifically defined herein or the context clearly indicates otherwise.
The following words and phrases when used in this Agreement with initial
capital letters shall have the following respective meanings, unless the
context clearly indicates otherwise.
Section 1.1. Actual Pension Plan Benefit. The amount of the annual
benefit under the Pension Plan that that is actually payable to the
Executive or his Beneficiary.
Section 1.2. Cause. Termination of the Executive's employment due to
any act which, in the sole discretion of Xxxxx Bros., is deemed to be
detrimental to the best interests of Xxxxx Bros., including, but not
limited to (a) serious, willful misconduct in respect of his duties for
Xxxxx Bros., (b) conviction of a felony or perpetration of a common law
fraud, (c) willful failure to comply with applicable laws with respect to
the execution of the business operations of Xxxxx Bros., (d) theft, fraud,
embezzlement, dishonesty or other willful conduct which has resulted in
economic damage to Xxxxx Bros., or (e) failure to comply with the drug and
alcohol abuse policies, if any, of Xxxxx Bros.
Section 1.3. Change in Control. A Change in Control shall occur
upon (a) the purchase or other acquisition by any person, entity or group
of persons (within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934 ("Act"), or any comparable successor provisions),
directly or indirectly, which results in the beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Act) of such person, entity
or group of persons equaling 30% or more of either the outstanding common
shares of Xxxxx Bros. or the combined voting power of the then-outstanding
securities of Xxxxx Bros. entitled to vote in the election of the Board of
Directors, or (b) the approval by the shareholders of Xxxxx Bros. of a
reorganization, merger, or consolidation, with respect to which in each
case persons who were shareholders of Xxxxx Bros. immediately prior to such
reorganization, merger or consolidation do not (solely because of their
common shares of Xxxxx Bros. owned immediately prior to such
reorganization, merger, or consolidation) immediately thereafter, own more
than 50% of the combined voting power entitled to vote in the election of
directors of the then-outstanding securities of the reorganized, merged or
consolidated company, or (c) a liquidation or dissolution of Xxxxx Bros.,
or (d) the sale of all or substantially all of the assets of Xxxxx Bros.
98
EXHIBIT 10(i)
(continued)
Section 1.4. Controlled Group. Xxxxx Bros. and any corporation or
other trade or business which, together with Xxxxx Bros., is "under common
control" within the meaning of Code Section 414(b) or (c), as modified by
Code Section 415(h), where applicable; any organization (whether or not
incorporated) which, together with Xxxxx Bros., is a member of an
"affiliated service group" within the meaning of Code Section 414(m); and
any other entity required to be aggregated with Xxxxx Bros. pursuant to
Code Section 414(o).
Section 1.5. Disability. The Executive's disability as determined
under a long-term disability plan maintained by Xxxxx Bros. covering such
Executive.
Section 1.6. Good Reason. One or more of the following actions by
Xxxxx Bros. leading to the Executive's voluntary termination: (a) material
breach of the terms of any employment agreement with the Executive that is
not "cured" by Xxxxx Bros. within 30 days of notice thereof, (b) failure of
a successor or assign of Xxxxx Bros. to assume liability under this
Agreement or an employment agreement with the Executive, or (c) material
reduction in the salary, duties or status of the Executive's position
within Xxxxx Bros.
Section 1.7. Maximum Target Bonus. The amount of a bonus (not to
exceed 100% of the target amount) that may be paid to the Executive based
on a performance goal target for the Plan Year, as set by the Board of
Directors of Xxxxx Bros.
ARTICLE II- SUPPLEMENTAL RETIREMENT BENEFITS
Section 2.1. Purpose of Agreement. The purpose of this Agreement is
to provide supplemental retirement benefits (the "Supplemental Benefits")
to the Executive. The Executive is a member of a select group of
management and highly compensated employees of Xxxxx Bros. The
Supplemental Benefits are designed to replace any benefits reduced under
the Pension Plan that the Executive would otherwise receive if not for (a)
the limitations on benefits imposed by Section 415 of the Code and/or (b)
the limitations on compensation considered under the Pension Plan imposed
by Section 401(a)(17) of the Code.
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EXHIBIT 10(i)
(continued)
Section 2.2. Amount and Duration of Supplemental Benefits. The amount
of Supplemental Benefits payable to the Executive under this Agreement
shall equal the difference between (a) the amount of the benefit payable,
expressed as an annual benefit amount, to the Executive under the Pension
Plan, determined under the terms of the Pension Plan in effect on the date
of the Executive's termination of employment with the Controlled Group but
calculated as if the Pension Plan did not contain the limitations of Code
Sections 401(a)(17) and 415, and (b) the amount of the Actual Pension Plan
Benefit.
The annual amount of Supplemental Benefits shall be paid for a period
of years equal to the Executive's Years of Service, as determined under the
Pension Plan, not to exceed fifteen (15) years.
Except as otherwise provided herein, the Executive's Supplemental
Benefits under this Agreement shall be computed in accordance with the
benefit formula and actuarial assumptions, methods and procedures
applicable under the Pension Plan and shall be based on the normal benefit
form under the Pension Plan at the date of the Executive's actual
retirement.
Section 2.3. Compensation. For purposes of calculating the
Supplemental Benefits set forth in Section 2.2, Annual Compensation shall
be determined in accordance with the Pension Plan; provided, however, that
the amount of any bonus that is taken into account for purposes of
determining Annual Compensation shall be limited to an amount equal to 50%
of the Maximum Target Bonus. In addition, Average Annual Compensation for
the Executive shall be determined as the period of thirty-six consecutive
months during the five consecutive Plan Years immediately preceding the
Executive's termination of employment during which the average of the
Executive's Annual Compensation is highest. In the calculation of such
Average Annual Compensation, in no event shall the thirty-six month period
take into account more than three annual bonus payments. To the extent
that such thirty-six month period would otherwise include more than three
annual bonus payments, all bonus payments after the first three annual
bonus payments included in such thirty-six month period (calculated from
the beginning of such thirty-six month period) shall be excluded from the
definition of Average Annual Compensation.
Section 2.4. Form of Executive's Benefits. At the time the
Executive's Supplemental Benefits under this Agreement become payable, such
benefits shall be paid in the form of quarterly installments. Xxxxx Bros.
expressly reserves the right to alter the payment frequency or method in
effect from time to time in its sole discretion as necessary or desirable.
Notwithstanding the foregoing, if a Change in Control occurs, Xxxxx Bros.
may under no circumstances and for no reason extend the payment period
beyond, or delay the commencement of payments to a date later than, the
time otherwise specifically provided under this Agreement.
100
EXHIBIT 10(i)
(continued)
Section 2.5. Commencement of Benefits. Payment of the Executive's
Supplemental Benefits shall commence on the same date as payments of the
benefits under the Pension Plan to the Executive commence. Any election
made by the Executive under the Pension Plan with respect to the
commencement of payment of benefits under the Pension Plan shall also be
applicable with respect to the commencement of payment of amounts payable
as Supplemental Benefits under this Agreement.
Section 2.6. Vesting and Forfeiture. The Executive shall be vested
in his Supplemental Benefits upon attainment of Early Retirement Age,
Normal Retirement Age, death or Disability. In addition, upon termination
of the Executive within the two year period following a Change in Control,
either by the Executive for Good Reason, or by Xxxxx Bros. other than for
Cause, the Executive shall be vested in the Supplemental Benefits payable
under the Agreement.
If the Executive is terminated for Cause or for a violation of his
confidentiality and non-competition agreement, all Supplemental Benefits
under this Agreement shall be forfeited. To the extent that the Executive
has commenced payments under the Agreement, all remaining installment
payments under the Agreement shall cease and be forfeited upon a violation
of the Executive's confidentiality and non-competition agreement.
Section 2.7. Actuarial Equivalent. The amount of the Supplemental
Benefits payable under the Agreement in the form set forth in Section 2.2,
or the determination of the amount of Supplemental Benefits which are
payable if payment commences at any time prior to a Executive's Normal or
Early Retirement Age, as defined by the Pension Plan, shall be the
actuarial equivalent of the amount of Supplemental Benefits payable in the
normal benefit form at the applicable retirement date, determined using the
same actuarial assumptions as set forth in the Pension Plan.
Section 2.8. Death Benefits. In the event of the death of the
Executive while receiving benefit payments under any provision of this
Agreement, Xxxxx Bros. shall pay the remaining payments due under this
Agreement in accordance with the method of distribution in effect on the
date of the Executive's death to the Executive's surviving spouse, if any.
In the event of the death of the Executive prior to the commencement of the
distribution of benefits under this Agreement, Xxxxx Bros. shall pay a
death benefit under this Agreement to the Executive's surviving spouse, if
any, based on the benefit that would have been payable to the Executive
under this Agreement. Such death benefit shall be payable at the time when
the death benefit (if any) under the Pension Plan becomes payable to the
Executive's surviving spouse under the Pension Plan, and shall be payable
for the number of years such benefits would have been payable to the
Executive but not beyond the surviving spouse's death. If the Executive is
not survived by a spouse, no death benefit shall be payable under this
Agreement.
101
EXHIBIT 10(i)
(continued)
ARTICLE III - MISCELLANEOUS
Section 3.1. Right to Assets. Nothing contained in this Agreement
and no action taken pursuant to the provisions of this Agreement shall
create or be construed to create a trust that is not subject to the claims
of any unsecured general creditors of Xxxxx Bros., or a fiduciary
relationship between Xxxxx Bros. and the Executive or any other person. If
Xxxxx Bros. elects to purchase insurance policies or otherwise invest any
funds in connection with this Agreement, all such policies or other
investments shall continue for all purposes to be a part of the general
assets of Greif Bros., and no person other than Xxxxx Bros. shall, by
virtue of the provisions of this Agreement, have any interest in such
funds. Xxxxx Bros. shall be the sole named beneficiary of any insurance
policies purchased by Xxxxx Bros. on the life of the Executive. To the
extent that the Executive, the surviving spouse or any other person
acquires a right to receive payments from Xxxxx Bros. under this Agreement,
such right shall be no greater than the right of any unsecured general
creditor of Xxxxx Bros.
Section 3.2. Assignment and Alienation Prohibited. Neither an
Executive nor his surviving spouse shall have the power or right to
transfer, assign, anticipate, hypothecate, mortgage, commute, modify, or
otherwise encumber, in advance, any of the benefits payable hereunder, nor
shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by the Executive or
his surviving spouse, nor be transferable by operation of law in the event
of bankruptcy, insolvency, or otherwise. In the event the Executive or his
surviving spouse attempts assignment, commutation, hypothecation, transfer,
or disposal of the benefits hereunder, the liabilities of Xxxxx Bros. shall
forthwith cease and terminate.
Section 3.3. Revocation. During the lifetime of the Executive, this
Agreement may be amended or revoked at any time or times, in whole or in
part, by Xxxxx Bros. in its sole discretion. However, unless the parties
agree otherwise, in the event of a modification or revocation, the
Executive shall be entitled to the Supplemental Benefits, if any, that have
accrued through the date of such amendment or revocation. Such benefits
shall be payable at such times and in such amounts as provided in this
Agreement.
102
EXHIBIT 10(i)
(continued)
Section 3.4. Effect On Other Xxxxx Bros. Benefit Plans. Nothing
contained in this Agreement shall affect the right of the Executive to
participate in or be covered by any qualified or non-qualified pension,
profit-sharing, group, bonus, or other supplemental compensation or fringe
benefit plan constituting a part of the existing or future compensation
structure of Xxxxx Bros. Except as otherwise expressly provided herein,
all terms and conditions applicable to an Executive's benefit under the
Pension Plan shall be applicable to the Executive's benefit under this
Agreement. Any benefit payable to the Executive under the Pension Plan
shall be paid solely in accordance with the terms and conditions of the
Pension Plan, and nothing in this Agreement shall operate or be construed
to modify, amend or affect the terms and conditions of the Pension Plan.
Section 3.5. Interpretation. Xxxxx Bros. shall have full power and
authority to interpret, construe, and administer this Agreement, and the
interpretation and construction thereof and actions thereunder by Xxxxx
Bros., including any valuation of the Executive's Supplemental Benefits and
the determination of the amount or recipient of the payments to be made
with respect thereto, shall be binding and conclusive on all persons for
all purposes. No trustee, employee or agent of Xxxxx Bros. shall be liable
to any person for any action taken or omitted in connection with the
interpretation and administration of this Agreement. Whenever, under this
Agreement, benefits are to be payable quarterly, the calculation of such
quarterly benefit payments shall be made under any method deemed reasonable
by Xxxxx Bros., in its sole discretion. Xxxxx Bros. shall be entitled to
rely conclusively upon all tables, valuations, certificates, opinions and
reports furnished by any actuary, accountant, controller, counsel or other
person employed or engaged by Xxxxx Bros. with respect to the Pension Plan
and/or to this Agreement.
Section 3.6. Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Xxxxx Bros., its successors and assigns, and
the Executive and his heirs, executors, administrators, and legal
representatives.
Section 3.7. Entire Agreement. This Agreement represents and
embodies the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
documents and understandings relative to this subject matter.
Section 3.8. Agreement Not a Contract of Employment. The Executive's
right to benefits under this Agreement shall not be construed or
interpreted to constitute or create a contract of employment between Xxxxx
Bros. (or any affiliate) and the Executive, and nothing contained herein
shall be deemed to confer on the Executive the right to be employed by
Xxxxx Bros. (or any affiliate).
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EXHIBIT 10(i)
(concluded)
Section 3.9. Liability. No member of the Board of Directors and no
officer or employee of Xxxxx Bros. shall be liable to any person for
actions taken or omitted in connection with this Agreement unless
attributable to fraud, nor shall Xxxxx Bros. be liable to any person for
actions taken or omitted with respect to this Agreement unless attributable
to fraud on the part of any officer, trustee or employee of Xxxxx Bros.
Section 3.10. Gender. Whenever in this Agreement words are used in
the masculine or neuter gender, they shall be read and construed as in the
masculine, feminine or neuter gender whenever they should so apply.
Section 3.11. Headings. Headings and subheadings in this Agreement
are inserted for reference and convenience only and shall not be deemed a
part of this Agreement.
Section 3.12. Applicable Law. The validity and interpretation of
this Agreement shall be governed by the laws of the State of Ohio, to the
extent not superseded by federal law.
EXECUTIVE XXXXX BROS. CORPORATION
By:
Title: Chairman and Chief Executive
Officer
Date: Date:
Witness
Witness
