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XXXXXX & XXXXXXXX CORPORATION AND SUBSIDIARIES
EXHIBIT NO. 10.9
AMENDED DEFERRED COMPENSATION AGREEMENT FOR FISCAL 1995
WHEREAS, Xxxxxx & Xxxxxxxx Corporation (the "Company") and Xxxxxxxxx X.
Xxxxxxxx, Xx., (The "Executive") have entered into an agreement dated June 9,
1994 providing for the deferral of compensation earned by Executive which would
otherwise be non-deductible under Section 162(m) of the Internal Revenue Code;
and
WHEREAS, the Agreement provides that amounts deferred under the
Agreement will be credited with earnings at a rate equal to 80% of the Firstar
Bank Milwaukee, N.A. prime rate; and
WHEREAS, the Agreement provides that the Company's Board, or its
Nominating and Salaried Personnel Committee, have the right to modify the
Agreement with the Executive's consent; and
WHEREAS, the parties desire to amend the Agreement to offer Executive
the choice of calculating earnings using 80% of the Firstar prime rate or a
rate designed to reflect the performance of Xxxxxx & Xxxxxxxx stock.
NOW, THEREFORE, BE IT RESOLVED, that the June 9, 1994 deferred
compensation Agreement entered into between Xxxxxx & Xxxxxxxx Corporation and
Xxxxxxxxx X. Xxxxxxxx, Xx. is amended and restated to read as follows:
1. Deferral of Compensation. This Agreement shall operate to defer, on
an unfunded basis, compensation earned by the Executive as an employee of the
Company for the Company's fiscal year ending in 1995, to the extent that such
compensation would otherwise be non-deductible under Section 162(m) of the
Internal Revenue Code, as amended from time to time. The amount deferred
hereunder shall be paid to the Executive as soon as practicable following the
Company fiscal year in which the Executive terminates employment with the
Company, such payment to be made in one lump sum, or in such other manner as
may be agreed upon between the Executive and the Company's Nominating and
Salaried Personnel Committee of the Board (the "Committee"). Such agreement, if
any, must occur before the termination of employment by the Executive, or such
payment shall be in a lump sum.
2. Death of Executive. If the Executive dies prior to receiving all
funds payable hereunder, the entire unpaid balance shall be paid in the same
manner as provided for the Executive under the Company's Economic Value Added
Incentive Compensation Plan.
3. Binding Effect. This Agreement has been approved by the Company's
Board of Directors and its Nominating and Salaried Personnel Committee, and
shall be binding and inure to the benefit of the Company, its successors and
assigns and the Executive and his heirs, executors, administrators, and legal
representatives.
4. Earnings on Deferrals. On or before the last day of the Company's
fiscal year, the Executive shall elect to have any deferrals hereunder credited
with earnings in accordance with (a) or (b) below:
(a) Earnings on a book (unfunded) basis beginning on the last
day of the Company fiscal year for which a deferral is made, and
continuing thereafter at a rate equal to 80% of the prime rate
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made available to the best customers of Firstar Bank Milwaukee,
N.A., and adjusted and compounded annually as of the last day of each
subsequent Company fiscal year until paid;
(b) Earnings at a rate designed to reflect the performance of
Company stock. Under this alternative, the amount deferred shall be
converted into shares of phantom Company stock as soon as practicable
following the determination of the amount deferred under this
Agreement. Each year, the Committee shall determine the amount of
dividends that would have been paid on the phantom stock and convert
such dividends into additional shares of phantom stock. Following the
conversions described above, the Company shall promptly advise
Executive of the number of phantom shares acquired. If Executive
chooses this investment alternative, Executive may elect to receive
distributions in cash or stock; provided that any stock distributions
shall be subject to any necessary approvals under securities laws or
exchange requirements.
5. Section 16 Consequences. Executive acknowledges that an election
under Section 4(b) above will have implications under Section 16 of the
Securities Exchange Act of 1934, including potential Section 16(b) liability if
Executive or an affiliate has a matching transaction. Executive acknowledges
that he will be responsible for reporting transactions under this Agreement on
the applicable Form 4 or Form 5.
6. Unfunded Status of Agreement. It is intended that this Agreement
constitute an "unfunded" arrangement for deferred compensation. The Committee
may authorize the creation of a trust or other arrangement to meet the
obligations created under this Agreement provided, however, that unless the
Committee otherwise determines, the existence of such trust or other
arrangement is consistent with "the unfunded" status of the Agreement.
7. Miscellaneous. Payment of deferrals hereunder shall be subject to
tax or other withholding requirements as may be required by law. The Company's
Board, or its Nominating and Salaried Personnel Committee, shall have the power
to modify or terminate this Agreement, but only with consent of the Executive.
IN WITNESS WHEREOF, Xxxxxx & Xxxxxxxx Corporation has caused this
Deferred Compensation Agreement to be executed by its duly authorized Director
and Xxxxxxxxx X. Xxxxxxxx, Xx., together with his spouse, Xxxx X. Xxxxxxxx,
hereunto have set their hands as of the date first above written.
XXXXXX & XXXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Chairman, Nominating and
Salaried Personnel Committee
/s/ X.X. Xxxxxxxx, Xx.
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Xxxxxxxxx X. Xxxxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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