Exhibit 10.4
SUPPLEMENTAL BENEFIT AGREEMENT
THIS AGREEMENT, made of the 30th day of September, 1995, by and between
ANUHCO, INC., a Delaware corporation (the "Company") and XXXXX X. XXXXXXX
("Employee").
W I T N E S S E T H:
WHEREAS, Employee has agreed to become an executive officer of Xxxxxx
Cartage Company ("Xxxxxx"); and,
WHEREAS, Xxxxxx is a subsidiary of Company; and,
WHEREAS, Employee's services are of value to the Company.
NOW, THEREFORE, in consideration of the premises the parties hereby
covenant and agree as follows:
1. Benefits. The purpose of this Agreement is to provide Employee
and his beneficiary(ies) with the benefits of salary continuation, supplemental
retirement, and a post-retirement death payment.
2. Employee Relinquishment of Group Life Benefits. Employee hereby
relinquishes all life insurance benefits he presently possesses or to which he
may become entitled in the future under any group life insurance plan sponsored
by the Company, but does not relinquish any such rights under group life
insurance plans sponsored by Xxxxxx.
3. Retirement. Normal Retirement shall occur when Employee's
employment with Xxxxxx terminates after attaining age sixty-five (65). Early
Retirement shall occur when Employee has terminated his employment with Xxxxxx,
has ten (10) years of employment with Xxxxxx, and has attained at least age
fifty-five (55).
4. Salary Continuation Benefit. If the Employee's position with
Xxxxxx is terminated before his sixty-fifth (65th) birthday by reason of death,
the Company shall pay, or cause to be paid, to his beneficiary the sum of
$35,000 per year for twenty (20) years. Payment shall be made in twelve (12)
equal monthly installments beginning with the first day of the month after his
death and on the first day of each month thereafter.
5. Supplemental Retirement Benefit. If the Employee continues to
devote his full time as an officer of Xxxxxx until Normal Retirement, the
Company shall pay to him following his retirement the sum of $21,000 per year.
Such amount shall be paid to the Employee in equal monthly installments over a
period of fifteen (15) years beginning with the first day of the month after
such retirement. If the Employee dies after his sixty-fifth (65) birthday while
employed by the Company or if Employee dies before the payment of all
installments referred to in the preceding sentence, all such installments
remaining unpaid shall be paid to such beneficiary is designated, to his estate.
Employee's entitlement to the supplemental retirement benefit shall be fully
vested in him (that is, not subject to the forfeiture) upon the first to occur
of the following dates provided Employee is employed by the Company on such
date:
a. his Normal Retirement date provided he began his
employment prior to age sixty (whether or not he actually retires);
b. date on which he has both attained at least his fifty-
fifth birthday and has ten or more years of service with the Company;
x. xxxx on which he first qualifies for disability under
the provisions of this paragraph 5;
d. date of completion of fifteen (15) or more years of
service with the Company.
e. the date upon which a Transaction shall occur, as
defined in an Agreement of even date herewith, between Employee and Company.
The extent to which Employee is vested in the supplemental retirement
benefit other than as provided above shall be determined in accordance with the
following vesting schedule:
VESTING SCHEDULE
No. of Percentage
Years of Service Of Vesting
One 10%
Two 20%
Three 30%
Four 40%
Five 50%
Six 60%
Seven 70%
Eight 80%
Nine 90%
Ten 100%
"Disability" as used herein means the Employee's inability to discharge the
duties and responsibilities assigned to him by an Employment Agreement of even
date herewith, by reason of a medically determinable physical or mental
impairment which can be expected to continue until Employee reaches age sixty-
five (65). No payments shall be made to Employee for disability until Employee
shall have qualified for early retirement, i.e. attainment of age fifty-five
(55) and ten years of service with Xxxxxx. The determination of the Employee's
disability shall be made by the Company. The Employee agrees to submit to such
medical examinations and to furnish such proof as may be required by the Company
in connection with the determination of the existence and continuation of
disability.
6. Post Retirement Benefit. Upon the death of Employee before
retirement, the Company shall pay or cause to be paid to Employee's beneficiary
or beneficiaries designated by him (or if no such beneficiary is designated, to
his estate) the sum of $175,000.
7. Early Retirement and Partial Benefits. In the event the employment
of Employee terminates after Employee has a vested supplemental retirement
benefit and the Employee elects to commence receiving payment after either
having attained age fifty-five (55) with ten years of service or having attained
age sixty-five (65), the amount of payment of such vested supplemental
retirement benefit shall be $21,000 per year for a period of fifteen (15) years
beginning with the first day of the month following receipt of written notice
from Employee to the Company of his election, which amount shall be adjusted as
follows:
Amount of Stated Benefits
Multiplied By
the applicable percentage of vested benefits
determined in accordance with paragraph 5.
Multiplied By
a fraction, the number of which is Employee's years
of service with Xxxxxx (including fractions of
years) and the denominator of which is number of
years of service (including fractions of years) the
Employee would have had if he had remained in the
Employment of the Company until age sixty-five (65).
Reduced By
Two and one-half percent (2 /%) for each year
(including fractions of years) by which the date
that such benefit payments are to commence precedes
age sixty-five (65).
8. Alternative Payment Methods. Upon the written application by
Employee or his beneficiary, the Company may permit the payment of benefits as
provided herein to Employee or his beneficiary in such other manner as it may,
in its sole discretion, determine to be appropriate.
9. Termination of Employment.
(h) If Employee's position as an officer of Xxxxxx
terminates for any reason other than the retirement, death or disability of the
Employee, benefits are payable to Employee or to his designee only to the extent
that the Employee had vested benefits as set forth in paragraph 5 as provided
herein, or as provided in paragraph 6(b) of the Agreement of even date herewith
between Employee and Company.
(i) Nothing in this Agreement shall be construed to
obligate the Company or Xxxxxx to continue to employ Employee; provided,
however, that in the event such employment relationship is terminated by
Employee, Company, Xxxxxx or any successor corporation at any time after a
Transaction (as defined in the Agreement referred to in subparagraph (a) of this
paragraph 9), and such termination entitles Employee to compensation under such
Agreement, the Company or its successor corporation, as the case may be, shall
pay to Employee the benefits provided in paragraph 4 herein commencing on the
first day of the month immediately following the date of such circumstances
shall relieve the Company of all other obligations for payment under this
Agreement.
1. Payments as Supplemental Compensation. The future benefits
provided hereunder shall not affect Employee's annual salary while an officer of
Xxxxxx, nor shall such benefits affect Employee's right to participate in any
current or future retirement plan or any supplemental compensation arrangement
which constitutes a part of Xxxxxx'x employee benefit plans including, but not
limited to, pension plans and group life, health and accident plans except as
provided in this Agreement.
2. Designation of Beneficiaries. Any amounts payable under this
Agreement after the death of Employee shall be paid to the beneficiary or
beneficiaries designated by Employee. Such designation of beneficiary or
beneficiaries shall be made in writing on a form prescribed by the Company and,
when filed with the Secretary or the Company, shall become effective and remain
in effect until changed with the Secretary of the Company. If Employee fails to
so designate a beneficiary, or in the event all of the designated beneficiaries
are individuals who either predecease Employee or survive Employee but die prior
to receiving all installments payable under this Agreement, the remaining
installments shall be paid when due to Employee's estate.
3. Rights Not Assignable. This Agreement and the rights, interests
and benefits hereunder shall not be assigned, transferred, pledged, sold,
conveyed or encumbered in any way by Employee and shall not be subject to
execution, attachment or similar process. Any attempted sale, conveyance,
transfer, assignment, pledge or encumbrance of the rights, interests or benefits
provided pursuant to the terms of this Agreement contrary to the foregoing
provision or the levy of any attachment or similar process thereupon shall be
null and void and without effect.
4. Life Insurance Policy. The Company may, at its option, purchase a
life insurance policy on the life of Employee, and such policy, if purchased,
shall name the company as beneficiary. Such policy, if purchased, shall remain
a general, unsecured, unrestricted asset of the Company and neither Employee nor
any Employee beneficiary shall have any rights with respect to, or claim against
such policy, and such policy shall not be deemed to be held under any trust for
the benefit of Employee or Employee's beneficiary, nor shall such policy be held
in any way as collateral security for fulfilling the obligations of the Company
under the terms of this Agreement. It is expressly understood that the benefits
provided to Employee under the terms of this Agreement will not be funded by
such policy, and that such benefits are promised on the general credit of the
Company and are unsecured. At the request of the Company, Employee agrees to
cooperate with the Company by providing information for and by submitting to any
physical examination necessary to obtain one or more life insurance policies.
5. Successors, Mergers or Consolidation. This Agreement shall inure
to the benefit of and be binding upon the Company, its successors and assigns,
including, without limitation, any person, organization or corporation which may
acquire substantially all of the assets and business of the Company or any
corporation into which company may be merged or consolidated, and Employee,
Employee's heirs, executors, administrators and legal representatives.
6. Amendment. This Agreement cannot be modified or amended except in
writing signed by both parties.
7. Construction. This Agreement shall be subject to and construed
under the laws of the State of Kansas.
8. Entire Agreement. This Agreement contains the entire agreement
between the Company and Employee pertaining to the subject matter hereof, though
Employee is contemporaneously executing an Employment Agreement and an Agreement
with respect to other facts of his employment by Xxxxxx and relationship with
the Company. No agreements, representations, or understandings not specifically
contained herein or therein shall be binding upon either party unless reduced to
writing and signed by the parties to be bound thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed the day and year first above written.
ANUHCO, INC.
By: /s/Xxxxxxx X. X'Xxxx
President
Attest:
/s/Xxxxxxx Xxxxxx
Secretary
/s/Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
