Executive Income
Deferred Compensation Agreement
AGREEMENT, made and entered into this First day of March, 1990, by and
between Philipp Brothers Chemicals, Inc., a Corporation duly organized and
existing under the laws of the State of New Jersey, and having its usual place
of business at 0 Xxxxxx Xxxxx, Xxxx Xxx, XX, (hereinafter sometimes called the
"Corporation"), and _____________, currently residing at _________________,
_____________ (hereinafter call "Executive"),
WITNESSETH THAT:
WHEREAS, the Executive is presently employed by the Corporation in the
position of ________________, in which capacity his services have contributed to
the successful operation of the Corporation, and the Corporation and its
Directors believe it is in the best interest of the Corporation to retain the
services of the Executive; and
WHEREAS, the Executive desires to enter into this Agreement with the
Corporation under which, in consideration of services rendered and to be
rendered by him to the Corporation, it will agree to make certain payments to
him in the event of his retirement while in the employment of the Corporation or
as otherwise provided for herein, all subject to the terms and conditions
hereof; and
WHEREAS, the Directors of the Corporation have concluded and agreed
that it is in the best interests of the Corporation to enter into this Agreement
with the Executive;
NOW, THEREFORE, in consideration of the premises, and the services
rendered and to be rendered to the Corporation by the Executive, and for other
good and valuable consideration, receipt of which is hereby acknowledged, the
Corporation and the Executive hereby mutually convenant and agree as follows:
ARTICLE I
Retirement of Executive Following Age 65
1.01 The Corporation agrees that the Executive may retire from the
active and daily service of the Corporation on the day which is one day prior to
the first day of the month in which the Executive has his sixty-fifth (65th)
birthday. It is understood and agreed that the word "retirement" as used in this
Agreement shall refer to the actual retirement of the Executive, and that no
benefits shall be paid the Executive under this Agreement until his actual
retirement from regular full--time employment in the Corporation, unless the
Executive and the Corporation shall otherwise mutually agree in writing.
1.02 The Corporation agrees that commencing on the first payment date
(as defined in Section 5.02) after the date of the Executive's retirement, and
on each payment date thereafter for the term of this Agreement, it will make
monthly retirement payments in the amount provided in Article IV hereof. The
Corporation agrees to continue to make such monthly payments to the Executive
during his life for Ten (10) years and until the Executive shall have received
One Hundred Twenty (120) monthly payments; subject, however, to the conditions
and limitations provided for and set forth hereinbelow.
ARTICLE II
Death During Retirement
2.01 The Corporation agrees that if the Executive shall retire but
shall die before receiving any or all of the said monthly payments as provided
in Section 1.02, it will continue to make such monthly retirement payments to
the designated beneficiary of the Executive who shall be living and entitled to
receive such payment on
the then current monthly payment date. If the Executive retires and dies after
the expiration of said One Hundred Twenty month period, no further payments
shall be due or payable by the Corporation under this Agreement.
2.02 As long as this Agreement is in force, the Executive shall be
entitled to specify, in accordance with the procedures set forth in Section
11.01, the beneficiary or beneficiaries of any payments remaining to be paid at
the time of his death under the provisions of Section 2.01 above.
ARTICLE III
Termination of Employment
3.01 In the event that the Executive terminates his employment with the
Corporation voluntarily, or if he is discharged for any reason prior to his
retirement date as set out in Section 1.01, no payments shall be due or payable
by the Corporation under this Agreement.
ARTICLE IV
Amount of Monthly Payments
4.01 The amount of each monthly retirement payment to be made by the
Corporation from its own funds and by its own check to the Executive or the
Executive's beneficiary, as provided for in this Section 1.02, shall be Two
Thousand Five Hundred dollars ($2,500).
4.02 Monthly retirement benefits shall commence on the first business
day following the Executive's retirement, and thereafter shall be made on the
first business day of each succeeding calendar month.
ARTICLE V
Employee Retirement Income Security Act of 1974 (ERISA)
5.01 For the purposes of ERISA, the Corporation will be the "Named
Fiduciary" and "Plan Administrator" of the plan for which this Agreement is
hereby designated the written plan instrument.
5.02 The Corporation's Board of Directors may authorize a person or
group of persons to fulfill the responsibilities of the Corporation as Plan
Administrator. The Named Fiduciary or the Plan Administrator may employ others
to render advice with regard to its responsibilities under the plan. The Named
Fiduciary may also allocate fiduciary responsibilities to others and may
exercise any other powers necessary for the discharge of its duties to the
extent not in conflict with ERISA.
ARTICLE VI
Claims Procedure
6.01 The following Claims Procedure shall control the determination of
benefit payments under this Plan:
(a) Filing of a Claim for Benefits
If the Executive, the Executive's beneficiary or other individual
("Claimant") believes he or she is entitled to receive benefits
under the plan he or she must submit a written claim for benefits
to the Plan Administrator. The Corporation's independent decision
on the beneficiary's Claim for
Benefits shall be determinative of whether or not the beneficiary
shall be entitled to receive benefits under this Plan. A
beneficiary's Claim for Benefits shall be submitted in writing to
the Plan Administrator on a form to be supplied by said
Administrator.
(b) Denial of Claim
A Claim for Benefits under the Plan will be denied if the
Corporation determines that the Claimant is not entitled to
receive benefits under the Plan. Notice of a denial shall be
furnished to the Claimant within a reasonable period of time after
receipt of the Claim for Benefits by the Plan Administrator.
(c) Content of Notice
The Plan Administrator shall provide within ninety (90) days to
every Claimant who is denied a Claim for Benefits written notice
setting forth, in a manner calculated to be understood by the
Claimant, the following:
1. The specific reason or reasons for the denial;
2. Specific reference to pertinent Plan provisions on which the
denial is based;
3. A description of any additional material or information necessary
for the Claimant to perfect the claim, and any explanation of why
such material or information is necessary; and
4. An explanation of the Plan's Claim Review Procedure as set forth
below.
(d) Review Procedure
The purpose of the Review Procedure is to provide a method by which a
Claimant may have a reasonable opportunity to appeal a denial of a
Claim to the Named Fiduciary for a full and fair review. To accomplish
that purpose, the Claimant or his duly authorized representative:
1. May require a review upon written application to the Named
Fiduciary;
2. May review pertinent Plan documents; and
3. May submit issues and comments in writing.
A Claimant (or his duly authorized representative) shall request a
review by filing a written application for review with the Named
Fiduciary at any time within sixty (60) days after receipt by the
Claimant of written notice of the denial of his claim.
(e) Decision on Review
A decision on review of a denied claim shall be made in the following
manner:
1. The decision on review shall be made by the Named Fiduciary, who
may in his discretion hold a hearing on the denied claim. Such
decision shall be made promptly, and not later than sixty (60)
days after receipt of the request for review, unless special
circumstances (such as the need to hold a hearing) require an
extension of time for processing, in which case a decision shall
be rendered as soon as possible, but not later than one hundred
and twenty (120) days after receipt of the request for review.
2. The decision on review shall be in writing and shall include
specific reasons for the decisions, written in a manner calculated
to be understood by the Claimant, and specific references to the
pertinent Plan provisions upon which the decision is based.
ARTICLE VII
Financing of Benefits
7.01 All benefits under the plan shall be provided out of the general
assets of the Corporation at the time such benefits are to be paid. The parties
agree that the Corporation is under no obligation to set aside funds in advance
of the time for payment, or to otherwise provide security for its obligations
under this Agreement.
7.02 Payments from the Plan shall be made out of the general assets of
the Corporation upon submission and approval of a Claim for Benefits made
pursuant to the Claims Procedure established as required by ERISA, and set forth
above.
ARTICLE VIII
Governing Laws
8.01 This Agreement shall be governed by and construed in accordance
with the laws of New Jersey, where it is made and to be performed. It sets forth
the entire agreement between the parties concerning the subject matter thereof,
and any amendment or discharge will be made only in writing. This Agreement will
bind and benefit the parties and their legal representatives and successors.
ARTICLE IX
Not a Contract of Employment
9.01 This Agreement shall not be deemed to constitute a contract of
employment between the parties, nor shall any provision restrict the right of
the Corporation to discharge the Executive.
ARTICLE X
Amendment or Termination
10.01 No beneficiary under this Agreement shall obtain any vested right
to have this Agreement continued in force and it may be amended or modified, in
whole or in part, by the Executive and the Corporation in writing at any time
without the consent of said beneficiary.
ARTICLE XI
Further Provisions
11.01 The term "beneficiary" as used herein shall mean any person or
trust, or combination thereof, last designated by the Executive in writing and
filed with the Corporation by the Executive during his lifetime upon a
Nomination of Beneficiary form provided by the Corporation. Any such designation
or designations of beneficiary shall be revocable at any time or times without
the consent of any beneficiary, whether now living or born hereafter, by written
designation of beneficiary made by the Executive and similarly filed by him with
the Corporation during his lifetime. In the absence of or failure of designated
beneficiaries, the executor(s) or administrator(s) of the Executive shall be his
beneficiary.
11.02 It is agreed that neither the Executive nor any beneficiary
hereunder shall have any right to commute, sell, assign, transfer or otherwise
convey the right to receive any payments hereunder, which payments and the right
thereto are expressly declared to be nonassignable and nontransferable, and in
the event of any attempted assignment or transfer, this Agreement shall
terminate and the Corporation shall have no further liability hereunder.
11.03 The Corporation agrees that it will not merge or consolidate
with another Corporation or organization, or permit its business activities to
be taken over by any other organization unless and until the succeeding or
continuing corporation or other organization shall expressly assume the rights
and obligations of the Corporation herein set forth.
11.04 This Agreement shall be executed in duplicate, each copy of
which when so executed and delivered shall be an original, but both copies
shall, together, constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
this First day of March 1990.
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Xxxx Xxxxxxxx
Phi1ipp Brothers Chemicals, Inc.
By:
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Chairman
President
NOMINATION OF BENEFICIARY
TO: Philipp Brothers Chemicals, Inc. (hereinafter called the "Corporation")
I Xxxx Xxxxxxxx, in accordance with the right granted to me in Section 2.01 of
the Executive Income Deferred Compensation Agreement between me and the
Corporation dated March 1, 1990, do hereby nominate as Beneficiary thereunder in
the event of my death:
Xxxx Xxxxxxxx, Spouse, if living, otherwise
to my Estate
still reserving the privilege of changing the Beneficiary herein named at any
time or times without the consent of any such Beneficiary.
This nomination is made upon the following terms and conditions:
1. The word Beneficiary as used herein shall include the plural wherever the
contract so permits.
2. If any sole Beneficiary who is then receiving monthly payments hereunder
and under said agreement shall not be living on any monthly payment date
provided for in said agreement, any and all remaining monthly payments
shall be payable to the next Beneficiary in the order named above unless
the executors or administrators of such sole Beneficiary are named as
Beneficiaries hereinabove.
3. If more than one Beneficiary is named either individually or as a class,
monthly payments shall be made equally to such Beneficiaries unless
otherwise provided hereinabove. If any such Beneficiaries die while
receiving monthly payments under said agreement, any and all remaining
payments shall be made equally to the surviving Beneficiaries of such
designation or class or all to the sole survivor of them unless otherwise
provided hereinabove. If all of such Beneficiaries shall die, any and all
remaining payments shall be made to the next Beneficiary in the order named
hereinabove.
4. If none of the Beneficiaries named hereinabove is living on any said
monthly payment date, any and all remaining payments shall be made to my
executors or administrators.
5. If any such monthly payments shall be payable upon any trust, the
Corporation shall not be liable to see to the application by the Trustee of
any payment hereunder at any time, and may rely upon the sole signature of
the Trustee to any receipt, release or waiver, or to any transfer or other
instrument to whomsoever made purporting to affect this nomination or any
right hereunder.
This nomination shall be executed in duplicate, but it shall not be valid unless
one copy thereof is filed with and receipt thereof is acknowledged thereon by
the Corporation during my lifetime. Any revocation or change of this Nomination
of Beneficiary shall not be valid unless it is filed with and receipt thereof is
acknowledged thereon by the Corporation during my lifetime, and loss or
destruction of any copy retained by me shall NOT constitute a revocation or
change of this nomination.
This nomination cancels and supersedes any Nomination of Beneficiary heretofore
made by me with respect to said agreement and the right to receive payments
thereunder.
Date: March 1, 1990
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Xxxx Xxxxxxxx
The Corporation hereby acknowledges receipt of the above Nomination of
Beneficiary this First day of March, 1990.
Philipp Brothers Chemicals, Inc.
By:
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