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Exhibit 10.32
SENIOR EXECUTIVE DEATH BENEFIT AGREEMENT
THIS AGREEMENT is made on April 12, 1991, between DURAMETALLIC
CORPORATION, of Kalamazoo, Michigan ("DURAMETALLIC"), and XXXXX X. XXXX
("Xxxx").
WITNESSETH:
WHEREAS, Xxxx is employed by DURAMETALLIC as a senior executive
and has contributed and is expected to contribute substantially to the
success of DURAMETALLIC; and
WHEREAS, as part of the terms and conditions of Xxxx'x employment,
DURAMETALLIC wishes to provide for the accumulation and payment of
certain benefits in the event of Xxxx'x death prior to termination of
his employment;
THE PARTIES agree as follows:
1. Death Benefit. DURAMETALLIC and Xxxx agree that if Xxxx dies
while employed by or providing consulting services to DURAMETALLIC,
DURAMETALLIC will pay Xxxx'x designated beneficiary installment
payments of $100,000 per year for up to 10 years after Xxxx'x
retirement or death ("Death Benefit"). If Xxxx has not designated a
beneficiary, then DURAMETALLIC will pay this Death Benefit to Xxxx'x
estate.
2. Payment of Death Benefits.
(a) The Death Benefit will be paid upon Xxxx'x death if:
(i) Xxxx has not voluntarily terminated his employment
with DURAMETALLIC before reaching the age of 60;
(ii) DURAMETALLIC has not terminated Xxxx'x employment
in good faith and with good cause and other than by reason of
Xxxx'x disability; and
(iii) Xxxx has continued to provide consulting services
to the company during the years following retirement up to 10
years or he is prevented from doing so by reason of death or
disability.
(b) The Death Benefit shall be paid to Xxxx'x beneficiary or
estate in annual installments of $100,000. The first installment
will be paid on the 6-month anniversary of Xxxx'x death if he dies
before retirement, or on the next anniversary date of his
retirement if he dies after retirement. Subsequent payments shall
be done on the anniversary of the first due date, and the last
installment shall be paid on the
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tenth anniversary of Xxxx'x death or retirement, whichever shall
first occur. If Xxxx dies after the last installment would have
been due, no Death Benefit shall be payable.
3. Disability Payments. The Death Benefit will be paid to Xxxx as
described in this Agreement. If Xxxx is unable to continue his
employment or to perform the services required under the Consulting
Agreement with DURAMETALLIC by reason of his disability for a period of
6 months, Xxxx shall be paid the amounts provided under this Agreement
as if he had died at the end of such 6-month period. Notwithstanding
the foregoing, if the disability no longer exists, the benefits
hereunder shall cease and Xxxx shall resume his employment or
consulting position with DURAMETALLIC. The Death Benefit will be paid
beginning on the 6-month anniversary date of the termination of
Xxxx'x employment or consulting services because of the disability or
on the anniversary date of his retirement.
4. Insurance. DURAMETALLIC will purchase and maintain insurance
policies which will assist in funding the Death Benefit described in
this Agreement. DURAMETALLIC will pay all premiums due under these
insurance policies directly and will be the sole owner and beneficiary
of these insurance policies. DURAMETALLIC will not be required to fund
the entire amount of its obligation under this Agreement by these
insurance policies. DURAMETALLIC will not grant any security interest,
encumbrance or lien on the insurance policies which is superior to the
interests of general creditors of the corporation.
5. Designation of Beneficiaries and Successors. Xxxx may from
time to time designate primary and successor beneficiaries of the
Death Benefit by executing and delivering to DURAMETALLIC an
appropriate beneficiary designation form.
6. No Fiduciary Relationship. Xxxx and his beneficiary shall have
no greater rights under this Agreement than those of a general
unsecured creditor of DURAMETALLIC. Nothing contained in this Agreement
and no action taken pursuant to the provisions of this Agreement shall
be construed as creating a trust of any kind. Nothing contained in
this Agreement shall be construed as creating an escrow arrangement of
any kind or a fiduciary relationship between DURAMETALLIC and Xxxx, or
Xxxx'x beneficiary, as pertains to the subject matter of this
Agreement.
7. Other Benefits and Remuneration. Nothing contained in this
Agreement shall be deemed to exclude Xxxx from any compensation,
insurance, or other benefit to which he may now be or later become,
entitled as an employee of DURAMETALLIC.
8. Termination. This Agreement terminates if Xxxx retires or
resigns from DURAMETALLIC before reaching the age of 60, or ceases to
render consulting services to DURAMETALLIC other than by reason of
disability. This Agreement is terminated without further action if
DURAMETALLIC terminates Xxxx'x employment with good cause and in good
faith and other than by reason of Xxxx'x disability.
This Agreement cannot otherwise be terminated by DURAMETALLIC
without the consent of Xxxx.
9. Change in Management or Control. This Agreement will be
unaffected by a change in the management or control of DURAMETALLIC.
Termination of Xxxx'x
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employment related to or following a change in management or control of
DURAMETALLIC will not be deemed to be "for good cause" and will not
affect Xxxx'x rights under this Agreement.
10. Disability. Xxxx shall be considered disabled if by reason of
accident, physical illness, or mental illness: (a) Xxxx does not
fulfill Xxxx'x normal responsibilities as an employee of DURAMETALLIC
for a period of at least 6 months; (b) DURAMETALLIC and Xxxx agree that
Xxxx is or will be unable to perform Xxxx'x normal responsibilities as
an employee for a period of at least 6 months; or (c) there is a
dispute as to disability and a physical or panel of physicians
determines that Xxxx is or will be unable to perform Xxxx'x normal
responsibilities for a period of at least 6 months. Disputes regarding
existence or date of disability shall be determined by a licensed
physician selected by agreement of DURAMETALLIC and Xxxx. Such
physician's fees shall be paid by DURAMETALLIC. If they cannot agree
upon a physician, the dispute shall be determined by a majority of a
panel of three licensed physicians, one selected by DURAMETALLIC, one
selected by Xxxx, and the third selected by the first two. DURAMETALLIC
and Xxxx shall each pay the fees of the physician they select, and the
fees of the third physician shall be shared equally. The date of
disability shall be the beginning of the 6-month period or the date
determined to be to onset of the disability by the physicians or panel
of physicians.
11. Amendment. The parties may amend this Agreement only by a
mutually executed written document.
12. Governing Law. This Agreement shall be construed according to
the laws of the State of Michigan.
IN WITNESS WHEREOF, this Agreement has been executed as of the
date written above.
DURAMETALLIC CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
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Its Senior VP Finance
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/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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