XXXXXXXXXX/XXXX SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
INDEX
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SECTION 1. DEFINITIONS 1
SECTION 2. SUPPLEMENTAL RETIREMENT BENEFITS 2
SECTION 3. PRE-RETIREMENT DEATH BENEFIT 3
SECTION 4. NON-COMPETITION REQUIREMENT 3
SECTION 5. CHANGE IN CONTROL 4
SECTION 6. NO RIGHTS OF EMPLOYMENT 4
SECTION 7. EMPLOYEE'S RIGHTS NON-ASSIGNABLE 4
SECTION 8. COMPANY NOT REQUIRED TO FUND THIS AGREEMENT 4
SECTION 9. ADMINISTRATION 5
SECTION 10. SUCCESSORS AND ASSIGNS 5
Signatures 5
XXXXXX X. XXXXXXXXXX/XXXX COMPANY
SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
THIS AGREEMENT, made this 15th day of December, 1995, by and between
XXXX COMPANY, West Bend, Wisconsin (hereinafter referred to as the
"Company"), and Xxxxxx X. Xxxxxxxxxx, of Mequon, Wisconsin (hereinafter
referred to as the "Employee"):
W I T N E S S E T H:
WHEREAS, the Employee is currently employed by the Company in the capacity
of Executive Vice President and Chief Operating Officer and in such position
can contribute materially to its continued growth and development and to its
future financial success; and
WHEREAS, the Company desires to insure insofar as possible that the
Company will have the benefit of the Employee's full services and executive
capacities for future years;
NOW, THEREFORE, in consideration of services rendered by the Employee to
the Company, it is agreed as follows:
Section 1. Definitions.
(a) "Average Monthly Compensation" means one-sixtieth (1/60th) of the
Employee's base salary and cash bonus from the Company for the highest five
(5) calendar years within the last ten (10) completed calendar years preceding
the date of the Employee's termination of employment with the Company. In the
event the Employee does not have five (5) calendar years of employment, only
the number of full months from the date of hire through the December preceding
termination of employment shall be used to determine Average Monthly
Compensation. Cash bonus means the cash distributed to the Employee during a
calendar year pursuant to Exhibit A of the Employment Agreement. Base salary
and cash bonus for this purpose include any salary reduction deferrals
pursuant to a cash or deferred arrangement or a cafeteria plan pursuant to
Internal Revenue Code ("Code") Sections 401(k) or 125.
(b) "Beneficiary" means the person, trust and/or other entity
designated by the Employee on the form most recently filed with the Secretary
of the Company prior to the Employee's death. In the event no validly
designated beneficiary survives the Employee by at least one year, the
Beneficiary shall be the Employee's estate. In the event the last designated
beneficiary survives the Employee by more than one year, the Beneficiary shall
be the estate of such last designated beneficiary.
(c) "Disability" means a physical or mental condition which totally and
presumably permanently prevents the Employee from engaging in any
substantially gainful activity as determined in accordance with Section 4.03
of the Xxxx Company Retirement Income Plan "B".
(d) "Employment Agreement" means the Employee's employment agreement
effective October 1, 1995.
(e) "Vested Percentage" means the percentage of the supplemental
retirement benefit in Section 2 earned by the Employee, subject in any event
to the forfeiture provision of Section 4 and the change in control provision
of Section 5. The Vested Percentage is one hundred percent (100%) in any of
the following circumstances:
(i) after the Employee completes five (5) years of Vesting Service;
(ii) if the Employee suffers a Disability; or
(iii) if the Employee retires from the Company after attainment of
age sixty-two (62).
In the event an Employee does not have a Vested Percentage of one hundred
percent (100%), he shall receive ten percent (10%) for each complete year of
Vesting Service.
(f) "Vesting Service" means the period of the Employee's consecutive
employment with the Company from November 24, 1992, through the date of
termination of employment.
Section 2. Supplemental Retirement Benefits.
(a) The amount of the monthly supplemental retirement benefit shall be
the Employee's Vested Percentage times an amount equal to twenty percent (20%)
of the Employee's Average Monthly Compensation.
(b) The monthly supplement shall be payable to the Employee commencing
as of the first day of the month following the earlier to occur of:
(i) age sixty-five (65); or
(ii) the later of termination of employment from the Company or age
sixty-two (62).
The supplement shall continue to be paid to the Employee for a period of
fifteen (15) years.
(c) In the event the Employee commences receiving the supplement but
dies prior to the end of the payment period, the remaining monthly payments in
the fifteen (15)-year period shall be made to the Beneficiary.
(d) In the event the Employee dies after termination of employment from
the Company but prior to the commencement of benefits pursuant to (b) above,
the monthly supplement calculated pursuant to subsection (a) above shall be
paid to the Beneficiary for the fifteen (15)-year period commencing as of the
first day of the month following the later to occur of the Employee's death or
the date the Employee would have attained (or if applicable, did attain) age
sixty-two (62).
Section 3. Pre-Retirement Death Benefit.
(a) In the event the Employee dies prior to commencement of the
supplemental retirement benefit under Section 2(b) above and while employed by
the Company, in lieu of any payment pursuant to Section 2 above, a pre-
retirement death benefit shall be paid to the Beneficiary.
(b) The death benefit shall be comprised of ten (10) payments, the
first being due as of the last day of the month following the Employee's
death. Each succeeding payment shall be made on successive anniversaries of
the first payment due date.
(c) The amount of each of the ten (10) payments shall be 3.6 times the
Employee's Average Monthly Compensation as of the Employee's date of death
(i.e., thirty percent (30%) of the Employee's Average Monthly Compensation
annualized).
Section 4. Non-Competition Requirement. Employee agrees that for a
period of two (2) years after termination of active employment hereunder, the
Employee shall not, except as permitted by the Company's prior written
consent, engage in, be employed by, or in any way advise or act for, or have
any financial interest in any business which is in substantial direct
competition with the Company as such term is defined in the Employment
Agreement. The ownership of minority and non-controlling shares of any
corporation whose shares are listed on a recognized stock exchange or traded
in an over-the-counter market shall not be deemed as constituting a financial
interest in such corporation. If the Employee shall fail to comply with any
of the foregoing conditions, he shall forfeit all right to any payments
pursuant to Section 2 hereof which would otherwise be payable to him
thereafter.
Section 5. Change in Control. Notwithstanding the definition of Vested
Percentage in Section 1 hereof, an Employee shall be one hundred percent
(100%) vested, subject to Section 4, in the event there is a change in control
of the Company as defined in the Employment Agreement.
Section 6. No Rights of Employment. Nothing herein contained shall be
deemed to confer upon the Employee any right to continue in the employ of the
Company nor to interfere with the right of the Company to terminate his
employment at any time.
Section 7. Employee's Rights Non-Assignable. Neither the Employee nor
the Beneficiary shall have the power to transfer, assign, anticipate,
alienate, sell, pledge, mortgage, or otherwise encumber in advance any of the
payments provided in this Agreement; nor shall any of said payments nor any
assets of the Company, including any insurance policies owned by the Company,
be subject to attachment, garnishment or seizure for the payment of any of the
recipient's debts, judgments or other obligations arising by operation of law
or in the event of bankruptcy, insolvency or otherwise.
Section 8. Company Not Required to Fund This Agreement. The Company is
not obligated to set aside or credit the Employee or the Beneficiary with
funds to provide for the payment of the amounts due under this Agreement, and
nothing in this Agreement shall be construed as creating a trust fund of any
kind for the benefit of the Employee or the Beneficiary. The Employee or
Beneficiary have the status of general unsecured creditors of the Company, and
this Agreement constitutes a mere promise by the Company to make future
benefit payments in accordance with the terms hereof. It is the intention of
the parties that this Agreement is unfunded for purposes of the Code and Title
I of the Employee Retirement Income Security Act of 1974, as amended.
Section 9. Administration. This Agreement shall be administered by the
Xxxx Company Compensation and Benefits Committee (herein referred to as the
"Committee"). If the Employee is also a Committee member, he shall abstain
from any deliberations or vote on any matter in connection with this
Agreement.
Section 10. Successors and Assigns. This Agreement shall inure to and be
binding upon the successors and assigns of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Attest: XXXX COMPANY
X. Xxxxxxx Xxxxxx X. Xxxxxxx
Its: Secretary Its: Chairman of the Board
X. Xxxxxxx
Witness as to Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxx, Employee
