Exhibit (e)(4)(xxiii)
SENSORMATIC ELECTRONICS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AGREEMENT
FOR VICE PRESIDENT LEVEL EMPLOYEES AND OFFICERS
AGREEMENT, effective as of [date], by and between Sensormatic
Electronics Corporation, a Delaware corporation having its principal place of
business at 000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000 (the "Company"), and
[name of employee] residing at [address of employee] (the "Key Executive").
W I T N E S S E T H:
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WHEREAS, the Key Executive has been continually employed by the
Company since [date] is serving in the capacity of [title of employee] and,
therefore, is part of the Eligible Class described in Section 4 of the Company's
Supplemental Executive Retirement Plan (the "Plan");
WHEREAS, the Key Executive is willing to continue in the employment of
the Company provided the Company agrees to provide for certain benefits in the
event of the Key Executive's retirement (or when attaining Normal Retirement
Age, if no longer employed by the Company), death or disability, subject to and
in accordance with the terms and conditions of this Agreement; and
WHEREAS, the Key Executive has been selected by the Board of Directors
of the Company (the "Board"), or by a committee designated by the Board to
administer the Plan (the "Committee"), to participate in the Plan, in accordance
with the terms and conditions of this Agreement;
WHEREAS, if applicable, in consideration of said selection, the Key
Executive has agreed to terminate his or her participation in the Company's
Senior Executive Defined Contribution Retirement Plan, Key Executive
Supplemental Retirement Plan, or Salary Continuation Plan, as the case may be,
and to forfeit any and all benefits thereunder payable to him or to her, or to
any beneficiaries.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Termination of Certain Rights. If the Key Executive is a
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participant in any of the Company's Senior Executive Defined Contribution
Retirement Plan, Key Executive Supplemental Retirement Plan, or Salary
Continuation Plan, as the case may be, he or she herewith terminates his or her
participation in each of said plans and agrees with the Company that any and all
benefits payable to him or her or his or her beneficiaries thereunder at any
time are hereby waived, released and forfeited to the Company, and any agreement
thereunder between the Company and the Key Executive shall immediately
terminate, shall have no further force or effect and shall be null and void.
Notwithstanding the foregoing, a Participant's final Retirement Benefit
hereunder cannot in the aggregate be less than the benefit he or she would have
been entitled to receive as outlined in Schedule A to the Company's Senior
Executive Defined Contribution Retirement Plan, Key Executive Supplemental
Retirement Plan or Salary Continuation Plan, as the case may be.
2. Incorporation of Plan in This Agreement and Designation of
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Beneficiary.
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a. The Company and the Key Executive hereby agree that all of the
terms, provisions, conditions and definitions of the Plan (a copy of which is
annexed hereto as Exhibit
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A) are hereby incorporated into this Agreement with the same force and effect as
if fully contained herein.
b. Any benefit payments due under the Plan on account of the death of
the Key Executive shall be made by the Company to such person(s), entity or
entities as the Key Executive may designate in Schedule A annexed hereto and
made a part hereof. The Key Executive shall have the right to change the
designated recipient(s) of these payments by presenting to the Company prior to
his or her death a revised designation in the form, or substantially in the form
of Schedule A annexed hereto. In the event the Key Executive shall fail to
designate a recipient prior to his or her death, the payments shall be made to
the Key Executive's estate.
c. Notwithstanding anything to the contrary contained in this Section
2, the benefits provided for under this Section 2 shall not be payable in the
event that the Key Executive's death results from suicide, whether sane or
insane.
3. Conditions to Payment of Retirement Benefits Under the Plan.
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a. The payment of Retirement Benefits under the Plan and this
Agreement is conditioned upon the Key Executive's full compliance with all of
the terms of this Agreement.
b. The payment of Retirement Benefits under the Plan and this
Agreement is, among other things, conditioned upon the Key Executive not, (i) at
any time during his employment with the Company as provided for in his or her
employment agreement, or in absence of any employment agreement with the
Company, during the two years after termination if his employment with the
Company (if such termination is earlier than his or her Normal Retirement Date),
or (ii) during the time the key Executive is receiving Retirement Benefits
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hereunder, directly or indirectly, anywhere in the United States of America or
elsewhere in the world:
(1) engaging in any activity for or on behalf of any person
(including the Key Executive) or entity engaged in a competitive line of
business to that carried on by the Company which term for purposes of this
paragraph "b" includes the Company's affiliates (including, without
limitation, distributors, licensees, franchisees, subsidiaries and joint
ventures).
(2) soliciting or attempting to solicit business of any customers
of the Company (including, during the Key Executive's employment with the
Company, prospective customers to whom solicitation has been made on behalf
of the Company and, after termination of Key Executive's employment with
the Company, prospective customers to whom such solicitation has been made
within one year prior to such termination) for products or services the
same or similar to those offered, sold, produced or under development by
the Company;
(3) otherwise diverting or attempting to divert from the Company
any business whatsoever;
(4) soliciting or attempting to solicit for any business endeavor
any employee of the Company; or
(5) interfering with any business relationship between the
Company and any other person.
In the event that the Key Executive does not fulfill the conditions
set forth above in this paragraph "b", all remaining benefits under this
Agreement will be forfeited and the
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Company will have no further obligations under this Agreement to the Key
Executive or any other person. Notwithstanding anything to the contrary
contained in this paragraph "b", the provisions hereof shall not prevent the Key
Executive from purchasing or owning up to two percent (2%) of the voting
securities of any corporation, the stock of which is publicly traded. The
provisions of this paragraph "b" shall have no further force or effect following
termination of the Key Executive's employment with the Company which occurs
after the occurrence of a "non-approved" Change in Control.
c. Notwithstanding any contrary provision of this Agreement, in the
event that the Key Executive's employment with the Company is terminated for
cause, the Key Executive shall not be entitled to any benefits under this
Agreement. For purposes of this Agreement, the Company shall be deemed to have
terminated the Key Executive's employment with the Company for cause only if
such termination is effected by reason of the conviction of the Key Executive
for a felony under federal or state law relating to the assets, business or
affairs of the Company or by reason of fraud or misappropriation relating to the
assets, business or affairs of the Company.
4. Funding.
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a. The Company's obligations under this Agreement shall be unfunded
and the Company shall not be obligated under any circumstances to fund its
obligations under this Agreement. The Company may, however, at its sole and
exclusive option, fund this Agreement in whole or in part. No such funding
arrangement shall impair or derogate from the Company's direct obligation to the
Key Executive under this Agreement.
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b. If the Company shall determine to provide funds for the payment or
the reimbursement of payment of benefits under this Agreement, in whole or in
part, the manner of such funding, and the continuance or discontinuance of such
funding, shall be the sole and exclusive decisions of the Company, to be
determined by or pursuant to the direction of the Board or the Committee.
c. If the Company shall determine to provide for the payment or
reimbursement to it of funds to cover the costs to it of this Agreement, in
whole or in part, by procuring, as owner, for its own benefit or that of an
assignee, life insurance on the life of the Key Executive and/or disability
insurance with respect to the Key Executive, the form and amount of such
insurance shall be the sole and exclusive decisions of the Company, and the Key
Executive shall have no interest in or right to acquire any such insurance
policy which the company may have procured. (Nothing in this Agreement shall in
any way restrict the right of the Company to borrow against any cash surrender
value of any such life insurance policy, to transfer or assign its interest in
any such policy or otherwise to exercise any rights of ownership with respect to
any such policy.) The Key Executive hereby agrees to submit to medical
examination, supply such information and execute such documents as may be
required by the insurance company or companies to whom the Company may have
applied for any such insurance, at any time or from time to time during the Key
Executive's lifetime.
5. Employment and Termination Rights.
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This Agreement shall not be deemed to create a contract of employment
between the Company and the Key Executive and shall create no right in the Key
Executive to continue in the Company's employ for any specific period of e, or
to create any other rights in the Key
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Executive or obligations on the part of the Company, except as are set forth in
this Agreement. Nor shall this Agreement in any manner restrict the right of the
Company at any time, with or without cause, to terminate the Key Executive's
employment.
6. Key Executive Right to Assets.
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Subject to the rights, if any, of the Key Executive under any
arrangement which may be instituted by the Company as contemplated by paragraph
"a" of Section 4 hereof, the rights of the Key Executive, any designated
recipient(s) of the Key Executive, the estate of the Key Executive or any other
person claiming through the Key Executive under this Agreement shall be solely
those of an unsecured general creditor of the Company. The Key Executive, any
designated recipient(s) of the Key Executive, the estate of the Key Executive or
any other person claiming through the Key Executive shall only have the right to
receive from the Company those payments as specified under this Agreement or any
such arrangement, if instituted. Except as expressly provided pursuant to any
arrangement referred to in the first sentence of this Section 6, the Key
Executive agrees that his or her designated recipient(s), his or her estate or
any other person claiming through him or her shall have no rights or interest
whatsoever in any asset of the Company, including any insurance policies or
contracts which the Company may obtain to informally fund the obligations of the
Company under this Agreement, and that any asset acquired by the Company in
connection with the liabilities it has assumed under this Agreement shall not be
deemed to be held under any trust for the benefit of the Key Executive or his or
her designated recipient(s) or his or her estate or any other person claiming
through him or her, or considered security for the performance of the
obligations of the Company. Except as so
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provided, such asset shall be, and remain, a general, unpledged and unrestricted
asset of the Company.
7. Independence of Benefits.
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The benefits payable under this Agreement shall be independent of, and
in addition to, any other benefits or compensation, whether by salary, bonus or
otherwise, payable to the Key Executive under any employment arrangements or
plans other than the Plan, including group insurance plans, incentive
compensation plans and other retirement plans, that now exist or may hereafter
exist from time to time.
8. Acceleration of Payments.
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Notwithstanding anything to the contrary contained herein, the Company
reserves the right, and may at any time at its option elect, to accelerate the
payment of any benefits payable under this Agreement without the consent of the
Key Executive, his or her designated recipient(s), his or her estate, or any
other person or entity or entities claiming through the Key Executive. In the
event that the Company elects to accelerate the payment of such remaining
benefits, the Company shall pay to the Key Executive or other person or entity
or entities entitled to such benefits, in lieu of the monthly payments remaining
due, a lump sum equal to the present value of such remaining monthly payments,
computed on the basis of such reasonable interest rate as shall be determined by
the Board or the Committee.
9. Leaves of Absence.
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The Company may, in its sole and exclusive discretion, permit the Key
Executive to take a leave of absence when consonant with the Company's leave of
absence policy at the time. During such authorized leave, the Key Executive will
still be considered to be in the
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continuous active employment of the Company subject to all the conditions
provided in this Agreement.
10. Change in Control.
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a. Notwithstanding any contrary provision of this Agreement, in the
event that the Participant is actively employed by the Company or is deemed to
be actively employed by the Company pursuant to Section 9 of the Plan, at the
time that any "non-approved" Change in Control occurs, following such "non-
approved" Change in Control, the Participant's Vested Percentage and Service
Benefit shall be deemed to be 100%, and the Benefit Service shall be deemed to
be equal to 15, irrespective of the number of Years of Service credited to the
Participant pursuant to the Vested Service and Benefit Service requirements
otherwise applicable.
b. For the purposes of this Agreement, the term "Change in Control"
shall mean a change in control of the Company of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), provided,
that, without limitation, such a change in control shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections 13d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's then
outstanding voting securities or (ii) during any period of 24 consecutive
months, individuals (y) who at the beginning of such, period constitute the
Board of Directors or (z) whose election, appointment or nomination for election
was approved prior to such election or appointment who were directors at the
beginning
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of such two-year period (other than any directors who prior to the Change in
Control were associated or affiliated with any person involved with any Change
in Control), cease for any reason to constitute at least three-fourths of the
Board of Directors of the Company.
c. A Change in Control shall be deemed, for purposes of this
Agreement, to be: (i) "non-approved" if (A) in connection with the consideration
thereof by the Board of Directors, a majority of the Previous Members of the
Board of Directors (as defined below), either before or after such Change in
Control, (x) votes to disapprove of such Change in Control, (y) votes to approve
of such Change in Control, but as a consequence of the existence of a competing
proposal for a Change in Control, or (z) otherwise expressly declares that such
Change in Control is "non-approved", or (B) a majority of the Previous Members
of the Board of Directors neither expressly approves nor disapproves of such
Change in Control, or (ii) "approved" if in connection with the consideration
thereof by the Board of Directors, a majority of the Previous Members of the
Board of Directors, either before or after such Change in Control, (x) approves
of such Change in Control (other than as a consequence of the existence of a
competing proposal for a Change of Control) or (y) otherwise expressly declares
that such Change in Control is "approved", notwithstanding clause (A) (y) of
this paragraph "b". The majority of the Previous Members of the Board of
Directors shall indicate its approval or disapproval of a Change in Control by a
statement or statements in writing to such effect. For purposes of this
Agreement, Previous Members of the Board of Directors shall mean members of the
Board of Directors as of the date of a Change in Control who had been in office
for a period of at least two year immediately prior to such Change in Control
(other than directors who prior
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to such Change in Control were appointed or elected as directors as a
consequence of their association or affiliation with any person (as defined
above) effecting such Change in Control).
In addition, notwithstanding any previous determination that a Change
in Control was "approved", such Change in Control may subsequently be
determined, in good faith, to be "non-approved" by a majority of the Previous
Members of the Board of Directors who are then still in office with the Company
or a corporate successor of the Company (or if fewer than two such Previous
Members are still in office, then by a majority of the Previous Members of the
Board of Directors, whether or not still in office) within the 36-month period
immediately following such Change in Control, if during such period there occur
(1) actions of the Company detrimental to an employee constituting involuntary
termination upon a subsequent termination of employment under agreements between
the Company and certain officers, key executives and other key employees of the
Company providing for benefits in the event of a Change in Control, (2) defaults
by the Company under agreements such as are referred to in (1) above, (3) the
involuntary termination (other than for cause or in the event of death or
permanent disability) of the employment of a number of the officers of the
Company who were officers immediately prior to such Change in Control exceeding
40% of the total number of such officers, or (4) the transfer (by sale, merger
or otherwise) of all or substantially all the equity securities of the Company
acquired by the person effecting such Change in Control, of all or substantially
all the assets of the company, or of all or substantially all the equity
securities of the Company's successor corporation, directly or indirectly, to a
third party (other than a majority owned affiliate of such person). In the event
of such a subsequent determination, the Key Executive shall be entitled to all
benefits arising under this Agreement out of a "non-approved" Change in Control
as if such
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Change in Control had been deemed "non-approved" initially. Any additional
benefits arising out of such "non-approved" Change in Control which the Key
Executive is entitled to receive through the date of such determination shall be
paid or satisfied promptly by the Company. For purposes of this paragraph "b",
the term "officers" shall not include individuals whose only office with the
Company is Assistant Secretary or Assistant Treasurer.
d. For the purposes of this Section, references to provisions of the
Exchange Act and rules, regulations and schedules thereunder shall be to such
provisions as they are in effect and interpreted as of the date hereof.
11. Assignability.
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Except insofar as this provision may be contrary to applicable law,
and except as provided for herein, neither this Agreement nor any benefits under
or interests in this Agreement shall be assignable or transferable by the Key
Executive or be subject to attachment, execution or similar process, and no
assignment, pledge, collateralization, attachment, execution or other
encumbrance or disposition of or on the Key Executive's interest in or benefits
under this Agreement shall be valid or recognized by the Company, and in the
event of any attempt at any such disposition or process, the Company may
immediately terminate this Agreement and it shall thereupon become null and
void.
12. Notices.
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Any notices required or permitted hereunder shall be in writing and
shall be deemed to be sufficiently given at the time when delivered personally
or when mailed by certified or registered first class mail, postage prepaid,
addressed to either party hereto as follows:
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If to the Company:
Sensormatic Electronics Corporation
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chairman of the Board;
If to the Key Executive:
At his or her last known address, as indicated by the employment records of the
Company; or to such changed address as such parties may have fixed by notice;
provided, however, that any notice of change of address shall be effective only
upon receipt.
13. Governing Law.
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This Agreement shall be governed by the laws of the State of Delaware.
14. Parties in Interest.
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This Agreement is solely between the Company and the Key Executive.
However, this Agreement shall be binding upon and, to the extent expressly
provided for herein, shall inure to the benefit of the designated recipient(s),
beneficiaries, heirs, executors and administrators of the Key Executive and
shall be binding upon and inure to the benefit of the successors and assigns of
the Company.
15. Controlling Instrument.
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In the event of any inconsistency between any provision of this
Agreement and the Plan or any description or summary of the Plan furnished to
the Key Executive before or after the date of this Agreement, the applicable
provisions of this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
SENSORMATIC ELECTRONICS CORPORATION
By:
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President and Chief Executive Officer
Date:
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[Name of employee] Witness
SCHEDULE A
DESIGNATION OF DEATH BENEFIT RECIPIENT UNDER SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN FOR VICE PRESIDENT
LEVEL EMPLOYEES AND OFFICERS AGREEMENT
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The undersigned, [name of employee], hereby requests that Sensormatic
Electronics Corporation (the "Company") xxxx its records to reflect
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(1) as the designated recipient(s) of any death benefit payable pursuant to the
Supplemental Executive Retirement Plan Agreement (the "Agreement") between the
undersigned and the Company, in the event of the undersigned's death, and to
make payments of any death benefit accrued to the above designated recipient(s)
as provided for under the term of the Plan and said Agreement. The Company is
instructed to treat the above designated recipient(s) as the vice president
level employee's or officer's designated recipient until such time as it
receives a new "Designation of Supplemental Executive Retirement Plan Agreement
Death Benefit Recipient" from the undersigned which makes a change.
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Date [Name of employee]
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Witness
(1) Sample Designations:
1. Xxxx Xxxxx, wife, if living, otherwise to Xxxx Xxxxx, son.
2. Xxxx Xxxxx, son, and Xxxx Xxxxx, daughter, equally, or to the
survivor.
3. Xxxx Xxxxx, wife, if living, or otherwise to Xxxx Xxxxx, son, and Xxxx
Xxxxx, daughter, equally, or to the survivor.
4. Name of Recipient.
5. His/Her estate.
CONFIRMATION
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The Undersigned hereby confirms that he or she has received a copy of the
Supplemental Executive Retirement Plan for Vice President and Officer Level
Employees and the related Beneficiary Designation form in connection with his or
her participation in said Supplemental Executive Retirement Plan.
Signature:
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Name: [name of employee]
Title: [title of employee]
Date:
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