KEY EXECUTIVE DEFERRED COMPENSATION AGREEMENT
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THIS AGREEMENT, made and entered into this _______ day of ____________,
_____, by and between XXXXXXX-XXXXXX COMPANY, a Delaware corporation with its
principal office located at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000
(herein called the "Corporation"), and the key executive (herein called the
"Executive") designated on Exhibit A attached hereto and made a part hereof,
which has been executed by the parties;
W I T N E S S E T H:
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WHEREAS, the Executive has been employed by the Corporation or one or more
of its Subsidiaries;
WHEREAS, the Corporation greatly values the efforts and abilities of the
Executive and considers him a member of a select management group of the
Corporation and its Subsidiaries;
WHEREAS, the Corporation desires to retain the valuable services of the
Executive and reasonably induce him to remain in the employment of the
Corporation or its Subsidiaries until his Retirement;
NOW, THEREFORE, in consideration of the Executive's services heretofore
performed and to be performed in the future as well as the mutual covenants
herein contained, the parties hereby agree as follows:
1. Definitions. In addition to other terms defined elsewhere in this
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Agreement, the following terms shall have the meanings set forth below for the
purposes of this Agreement:
1.1 "Agreement" shall mean this Key Executive Deferred Compensation
Agreement.
1.2 "Committee" shall mean the committee appointed by the Board of
Directors of the Corporation to administer the arrangements provided in this
Agreement.
1.3 "Subsidiary" shall mean any subsidiary corporation, at least
fifty percent (50%) of the issued and outstanding voting stock and at least
fifty percent (50%) of the issued and outstanding non-voting stock of which is
owned by the Corporation.
1.4 "Retirement Age" shall mean the date on which the Executive
attains the retirement age set forth on Exhibit A attached hereto and made a
part hereof, at which time the Executive shall retire from the service of the
Corporation or the Subsidiary with which he is employed unless the continuance
of his service with the Corporation or any Subsidiary is requested by the Chief
Executive Officer of the Corporation ("CEO"), in which event the Executive's
Retirement Age shall be such date as is specified by the CEO, but not beyond two
(2) years following the Retirement Age set forth on Exhibit A hereto.
1.5 "Retirement" shall mean the event on which the Executive retires
from service with the Corporation and all of its Subsidiaries at or following
his Retirement Age.
1.6 "Retirement Date" shall mean the date of the Executive's
Retirement.
1.7 "Termination of the Executive's Employment" shall mean the
Executive's termination of employment with the Corporation and all of its
Subsidiaries for any reason, including without limitation the Executive's
resignation or discharge by the Corporation or Subsidiary with which he is
employed, with or without cause, other than because of the Executive's
Retirement, death, Early Retirement, or transfer of the Executive to another of
the corporations comprising the Corporation and its Subsidiaries.
1.8 "Early Retirement" shall mean the event on which the Executive
retires from employment with the Corporation and all of its Subsidiaries prior
to the Executive attaining his Retirement Age, which is approved in writing by
the Committee.
2. Retirement Age Benefit.
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2.1 If and only if there has been no Termination of the Executive's
Employment prior to the Executive attaining his Retirement Age, then, upon the
Executive's Retirement, the Corporation shall pay to the Executive the
following:
(a) If the Executive retires upon attaining his Retirement Age, the
amount of deferred compensation set forth on Exhibit A shall be paid to the
Executive in the total number of monthly payments and in the amount of each
monthly payment as set forth on Exhibit A attached hereto.
(b) If the Executive's Retirement Age is extended by the CEO pursuant
to paragraph 1.4 hereof, the total amount of deferred compensation set
forth on Exhibit A shall be paid to the Executive following his Retirement
Date in equal monthly payments, but the total number of monthly payments
set forth on Exhibit A shall be reduced by the number of months that the
Executive's Retirement Age was so extended, and the amount of each monthly
payment shall be increased, so that the total amount of deferred
compensation set forth on Exhibit A is fully paid at the same time it would
have been fully paid pursuant to subparagraph (a) above if the Executive
had retired upon attaining his Retirement Age.
The first payment shall be made within thirty (30) days after the Executive's
Retirement Date and each subsequent payment shall be made monthly thereafter.
2.2 If the Executive has the right to receive payments under
paragraph 2.1 hereof, but dies before receiving the total number of payments as
specified on Exhibit A hereto, the Corporation shall make the balance of such
payments at such times as specified herein to such individual (or in such
proportions to such individuals) as the Executive has designated in writing to
the Committee prior to the Executive's death, until the total number of such
payments
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has been made. In the event the Executive shall fail to so designate a
beneficiary prior to his death, such payments shall be made to the Executive's
surviving spouse, if alive, otherwise to the personal representative of the
Executive's estate.
2.3 If and only if there has been no Termination of the Executive's
Employment prior to the Executive attaining his Retirement Age set forth on
Exhibit A hereto, and the Executive dies thereafter but prior to his Retirement,
the Corporation shall pay to such individual(s) designated by the Executive, or
otherwise as provided in paragraph 2.2 hereof, the total number of monthly
payments specified on Exhibit A hereto, the first such payment to be made within
thirty (30) days after the date of the Executive's death and each subsequent
payment to be made monthly thereafter.
3. Death Benefit Prior to Retirement Age. If and only if there has been
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no Termination of the Executive's Employment prior to his death, in the event
the Executive dies prior to attaining his Retirement Age, the Corporation shall
pay to such individual(s) designated by the Executive, or otherwise as provided
in paragraph 2.2 hereof, the total number of payments as specified on Exhibit A
hereto, the first such payment to be made within thirty (30) days after the date
of the Executive's death and each subsequent payment to be made monthly
thereafter; provided, however, that the amount of each such monthly payment
shall be fifty percent (50%) of amount otherwise payable as set forth on said
Exhibit A.
4. Early Retirement. In the event of the Early Retirement of the
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Executive, the Executive shall have no right to receive payments under
paragraphs 2 or 3 hereof and the Corporation may pay to the Executive such
amounts, if any, and on such terms and conditions (in addition to those provided
in paragraph 5 hereof) as the Committee in its sole and absolute discretion may
determine; provided, however, that the total amount of such benefit payments
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shall not exceed those which otherwise would have been payable to the Executive
if he had been entitled to receive payments under paragraph 2.1 hereof. The
Committee in its sole and absolute discretion may commence such payments at any
time after the date of such Early Retirement.
5. Certain Conditions.
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5.1 The payment of all such benefits by the Corporation pursuant to
paragraphs 2.1 or 4 hereof is conditioned upon the Executive from time to time
rendering such reasonable business consulting and advisory services to the
Corporation or any Subsidiary as the CEO may reasonably deem to be desirable;
provided, however, that the Executive shall not be obligated to provide more
than eight (8) hours of such services per month during the period benefits are
being paid hereunder without additional compensation, and if the Executive is
requested to provide more than eight (8) hours of such services per month, he
shall be compensated for such additional hours at the same rate of base salary
as he was receiving at the time of his Retirement or Early Retirement. Except
to the extent reasonably deemed by the CEO to be necessary for such services,
all such services shall be by telephone or otherwise so as not to require the
Executive to travel outside of the metropolitan area in which he resides. The
failure to perform any such services by reason of the Executive's illness,
disability or death shall not be considered a breach of this Agreement. Such
services shall not require the Executive to be active in the day-to-day
activities of the Corporation or such Subsidiary and it is agreed and understood
that the Executive shall perform such services in the capacity of an independent
contractor and not as an employee. The Executive shall be reimbursed for all
reasonable and necessary expenses incurred by him in connection with rendering
such services upon presentation by him of itemized statements therefor.
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5.2 Notwithstanding anything contained in this Agreement to the
contrary, as liquidated damages, the Executive shall not have any right to
receive any further payments hereunder and the Corporation shall have no further
liability to the Executive or any other person therefor, if during his
employment with the Corporation or any Subsidiary or at any time thereafter
during the period benefits are being paid hereunder, the Executive commits an
act of Disloyalty to the Corporation or any Subsidiary. "Disloyalty" shall
include, but shall not be limited to, fraud, theft, embezzlement, disclosures of
secret or confidential information of the Corporation or any Subsidiary,
violation of any agreement with the Corporation or any Subsidiary concerning
secrecy or confidentiality of information or, without the prior written consent
of the Committee, the Executive, directly or indirectly, in any manner,
requesting, influencing or inducing any employee of the Corporation or any of
its Subsidiaries to leave his employment therewith, or, directly or indirectly,
being an owner, director, officer, employee, partner or agent of, or in any way
associated with, any business which is in any way competitive with any aspect of
the business engaged in by the Corporation or any of its Subsidiaries (other
than the ownership of one percent (1%) or less of the outstanding stock of a
corporation whose stock is listed on a national securities exchange or an over-
the-counter stock listed by the National Association of Securities Dealers).
5.3 Notwithstanding that the monthly payments to which the Executive
may become entitled hereunder are payable over an extended period of time or
anything else contained in this Agreement to the contrary, no interest of any
kind shall be payable with respect to any amounts payable hereunder.
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6. No Funding.
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6.1 It is understood and agreed that the Corporation's obligations
under this Agreement shall be an unfunded and unsecured promise to pay. The
Corporation shall not be obligated under any circumstances to fund its
obligations hereunder.
6.2 If the Corporation elects to purchase any insurance covering the
life of the Executive, the Corporation shall be the sole owner and beneficiary
thereof and the Corporation shall have the absolute right, in its sole
discretion, to terminate such life insurance and to exercise all other incidents
of ownership.
6.3 At no time shall the Executive or any person acquiring a right to
receive payments hereunder be deemed to have any right, title or interest in or
to any specified asset or assets of the Corporation, including without
limitation any such life insurance policy or any proceeds thereof.
6.4 Any such life insurance policy shall not in any way be considered
to be a fund from which the benefits hereunder shall be payable or as security
for such payments, but shall be, and remain, a general unpledged, unrestricted
asset of the Corporation. Nothing contained herein shall be construed as giving
the Executive or any person acquiring a right to receive payments hereunder any
greater rights than those of any other unsecured general creditor of the
Corporation.
6.5 The Executive hereby agrees to submit to any medical examination,
supply such information, and execute such documents as may be required by the
insurance company or companies to which the Corporation may from time to time
apply for any such insurance. Notwithstanding anything to the contrary
contained in this Agreement, in the event that the Corporation elects to
purchase insurance on the life of the Executive and any proceeds
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thereof are reduced or eliminated on account of the Executive's suicide,
misstatements or false application or for any other reason not the fault of the
Corporation, the Corporation's obligations hereunder shall be eliminated or
reduced as the Committee in its sole and absolute discretion may determine.
7. Miscellaneous.
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7.1 Right to Discharge. Nothing contained in this Agreement shall be
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construed to be a contract of employment between the parties hereto or as giving
the Executive any right to continue in the employ of the Corporation or any
Subsidiary, nor shall any provision hereof restrict the right of the Corporation
or the Subsidiary with which the Executive is employed to discharge the
Executive, with or without cause, regardless of the effect, if any, that such
discharge shall have upon the Executive's right to receive benefits hereunder.
7.2 Right to Other Benefits. Nothing contained in this Agreement
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shall in any way affect or interfere with the rights of the Employee under any
employment contract or to share or participate in the Xxxxxxx-Xxxxxx Company
Employees Profit Sharing Plan or any other profit-sharing, bonus, group life
insurance or similar plan in which he may be entitled to share or participate.
7.3 Assignment. Neither the Executive, his spouse, nor any other
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beneficiary under this Agreement shall have any right to commute, sell,
transfer, assign or otherwise convey the right to receive any benefits payable
under this Agreement, nor shall any such benefits be subject to the claims of
any creditor, any spouse for alimony or support, or other person, or be
transferable by operation of law in the event of bankruptcy, insolvency, or
otherwise.
7.4 Administration. The Committee shall have full power and
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authority to interpret, construe and administer this Agreement and the payment
of benefits hereunder,
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including authority to determine any dispute or claim with respect thereto, and
the Committee's interpretations and constructions hereof and actions hereunder
made in good faith shall be final, binding and conclusive upon the parties and
all other persons for all purposes. No member of the Committee shall be liable
to any person for any interpretation, construction or action taken or omitted in
good faith in connection with this Agreement or the benefits hereunder.
7.5 Withholding Taxes. The Corporation may withhold from any payment
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made under this Agreement such amount as it may be required to withhold under
any federal, state or other law.
7.6 Binding Effect. Subject to the provisions hereof, this Agreement
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shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors, assigns, designated beneficiaries, heirs and personal
representatives.
7.7 Entire Agreement. This Agreement comprises the entire agreement
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of the parties hereto and supersedes all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject matter
hereof.
7.8 Amendments. This Agreement may not be modified or changed except
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by an instrument or instruments in writing signed by both parties hereto.
7.9 Headings. The headings of the various sections and paragraphs of
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this Agreement have been inserted for convenience only, are not part of this
Agreement, and shall not be deemed in any manner to modify, explain, enlarge or
restrict any of the provisions of this Agreement.
7.10 Waivers. Failure or delay on the part of any of the parties
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hereto to exercise any right, power or privilege hereunder shall not operate as
a waiver thereof, nor shall
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any single or partial exercise of any right, power or privilege preclude any
other or further exercise thereof of any other right, power or privilege.
7.11 Gender and Number. Whenever the context requires or permits,
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words used in the singular shall be construed to mean or include the plural and
vice versa, and pronouns of any gender or neuter shall be deemed to mean or
include any other gender and neuter.
7.12 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Illinois. The parties hereto hereby
irrevocably agree that any legal action or proceeding with respect to this
Agreement shall be brought in the courts in the State of Illinois having
jurisdiction in the County of Xxxx or in the courts of the United States of
America having jurisdiction in such County, and the parties, for themselves and
their successors, assigns, designated beneficiaries, heirs and personal
representatives, hereby irrevocably consent and submit to the exclusive
jurisdiction of such State and United States courts.
7.13 Effective Date. This Agreement shall not be effective unless and
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until both parties have executed and delivered same to each other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXX-XXXXXX COMPANY
("Corporation")
By_________________________________
President
___________________________________
("Executive")
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EXHIBIT A
TO
KEY EXECUTIVE DEFERRED COMPENSATION AGREEMENT
Amount of Number of Amount of Each
Date of Retirement Deferred Monthly Monthly
Name Birth Age Compensation Payments Payment
---- ----- --- ------------ -------- -------
XXXXXXX-XXXXXX COMPANY
("Corporation")
By____________________________
President
______________________________
("Executive")
Schedule to Form of
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Key Executive Deferred Compensation Agreement
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Amount of Number of Amount of Each
Executive Deferred Monthly Monthly
Name Compensation Payments Payment
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Xxxxxxx X. Xxxxx $4,000,000 120 $33,333
Xxxxxx X. Xxxxxxx $4,500,000 180 $25,000
Xxxxxxx X. Xxxxx $3,000,000 180 $16,667
Xxxxx X. Xxxxxxx $3,000,000 180 $16,667
Xxxxxxx X. Xxxxxxxx $2,250,000 180 $12,500
