EXECUTIVE RETIREMENT INCOME CONTRACT
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THIS AGREEMENT made this 1st day of December, 1980, between BINKS
MANUFACTURING COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware ("Company") and ("Executive").
The Executive is a valued executive or managerial employee and has
been in the continuous employ of the Company for many years, during which period
his services have materially contributed to the growth and development of the
Company's business. In order to offer an inducement to the Executive to remain
in the employ of the Company until he reaches Retirement Date the following
Agreement has been reached:
In consideration of the foregoing and of the mutual covenants herein
contained, it is agreed by the parties hereto as follows:
1. DEFINITIONS. The following terms used in this Agreement shall have
the meaning specified below unless the context clearly indicates to the
contrary.
(a) "Employment period" shall mean that period commencing with
the date hereof and continuing until the Executive's termination of employment.
(b) "Retirement period" shall be that period commencing on the
Executive's retirement date and continuing until the expiration of 120
consecutive months.
(c) "Retirement date" shall be the first day of the month
immediately following the date of the Executive's termination
of employment with the Company (a) other than by dismissal for cause on or after
his 65th birthday, or (b) prior to his 65th birthday on account of disability,
dismissal without cause or resignation with the consent of the Company as
provided herein, which shall be the date for commencing payment of retirement
benefits to which be may be entitled hereunder.
(d) "Disability" shall mean a physical or mental condition of the
Executive which in the judgment of the Company, based upon a medical report of
a duly licensed physician appointed by the Company or other evidence
satisfactory to the Company, permanently prevents the Executive from
satisfactorily performing his usual duties of any other work available with the
Company for which he is qualified by reason of training, education or
experience.
(e) "Termination of employment" shall mean the severance of
service with the Company for any reason.
(f) "Dismissal for cause" shall mean a dismissal by reason of (1)
fraud or dishonesty, (2) employment by or assistance to a competitor of the
Company, (3) sharing of so-called "trade secrets" of the Company with a
competitor of the Company, (4) lack of faithful, diligent and competent
performance in the duties assigned to the Executive, not caused by disability as
herein defined, (5) failure to follow and implement corporate policy of the
Company, (6) deliberate and willful failure to perform in the manner, and at the
level, and with the standard required by the position occupied by the Executive,
or (7) violation by the Executive of any of his covenants and agreements set
forth in this Agreement.
(g) "Assistance to a competitor" shall mean becoming or being an
owner, partner, officer, director, stockholder or employee of a business which
conducts a business in competition with the business of the Company, and shall
also mean being an agent or an independent contractor in any manner which,
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in the opinion of the Company shall be in competition with the business of the
Company. None of the conditions in this paragraph shall prohibit the Executive
from purchasing or holding for investment any shares of stock or other
securities of any corporation whose securities are listed upon a recognized
securities exchange, or from making any investment in or becoming a director of
any noncompeting business.
(h) "Beneficiary" shall mean the person or persons (natural or
otherwise) designated by the Executive to receive benefits provided hereunder
after his death by his written signed instrument filed with and accepted by the
Company.
(i) All determinations and judgments required pursuant to the
terms of this Paragraph 1 shall be made by the Company, and its decision in each
such case shall be final, complete and conclusively binding on all parties and
for all purposes hereunder.
2. EMPLOYMENT PERIOD DUTIES AND COMPENSATION. During the employment
period, the Executive agrees to serve the Company in an executive or managerial
capacity with such duties as may be reasonably assigned to him from time to time
by the Company, such duties to be substantially of the same character as those
now assigned to the Executive, and the Executive shall devote his entire time,
energy and attention exclusively to the business of the Company except during
usual vacation periods and except to the extent reasonably required by the
Executive for the supervision of his own personal investments.
The Executive shall receive such compensation as shall be
determined from time to time by the Company, plus participation in such profit
sharing, insurance and other employee benefits as are made available to
executive or managerial employees.
3. RETIREMENT INCOME. As additional compensation for his services
during the employment period and during the
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period prior thereto if any the Company shall pay the Executive during his
retirement period a yearly retirement income, subject to the conditions herein
provided, of 1 % of his average annual salary (exclusive of bonuses, profit
sharing and other employee benefits) for the 5 full fiscal years of the Company
(or lesser number of such years employed by the Company) immediately preceding
his retirement date, multiplied by the number of full fiscal years he was
employed by the Company from date of first employment by the Company. Such
yearly retirement income shall be paid to the Executive in monthly installments
unless otherwise agreed by the parties.
In the event that the Executive shall voluntarily resign from the
Company prior to his 65th birthday without the consent of the Company, or in the
event that the Company shall dismiss the Executive for cause at any time, any
and all rights of the Executive under the terms of this Agreement shall
thereupon immediately terminate and shall thereafter be of no effect.
Upon the Executive's termination of employment prior to his 65th
birthday by reason of (a) disability as herein defined, or (b) for any reason,
other than his voluntary resignation without the consent of the Company or his
dismissal for cause, or upon his termination of employment on or after his 65th
birthday for any reason except dismissal for cause, the Executive's retirement
date shall be the first day of the month following such termination of
employment and there shall be paid to him retirement benefits of the amount and
subject to the conditions herein stated.
All retirement benefits payable hereunder shall be contingent
upon the Executive's abstention from assistance to a competitor of the Company
as herein defined during the retirement period. In the event of breach of such
condition all future retirement benefit payments shall be forfeited, but all
such benefits previously paid shall be non-forfeitable. In lieu of forfeiting
all future retirement benefits the Company may in its discretion
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reduce the amount of such benefits, or temporarily suspend and forfeit the same
and thereafter continue their payments for the remainder of the retirement
period in whole or in part. The failure of the Company to reduce or discontinue
payments after any one or more of such breaches of the Executive shall not be
regarded as a waiver of its right to reduce or discontinue any such payments at
a later date.
4. DEATH AND OTHER FRINGE BENEFITS. Upon the death of the Executive
prior to his retirement date the Company shall pay his beneficiary a death
benefit equal to 10 times what his yearly retirement income would have been
hereunder had his date of death been his retirement date, payable in monthly
installments commencing the first of the month coincident with or next
succeeding his death and continuing for 120 consecutive months or such lesser
number of months as the Company and beneficiary agree.
In the event of the Executive's death during his retirement
period the Company shall pay his beneficiary the retirement income payments in
the amount and at the time they would have become payable to the Executive had
he lived.
During the retirement period the Executive shall also be
eligible, to the extent permitted by applicable law, to participate in any group
life insurance, health and accident insurance or medical expense reimbursement
plan maintained and offered by the Company generally for those retired executive
and managerial employees having this or similar retirement income contracts.
The beneficiary of the Executive shall be such person or persons,
natural or otherwise, and in the amounts to each if more than one, as shall be
designated by him in writing filed with and accepted by the Company. If no
designated beneficiary shall be living or in existence on any payment date the
Executive's estate shall be his beneficiary to whom all death benefits
thereafter due shall be paid.
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5. MERGER OR CONSOLIDATION. If the Company shall at any time be merged
or consolidated with any other corporation or if substantially all of the assets
of the Company are transferred to another corporation, the provisions of this
Agreement shall be binding upon and inure to the benefit of the successor
corporation. In the event that the terms of this paragraph shall be applicable,
the Board of Directors of the Company acting immediately prior to the time of
any such merger, consolidation or transfer of assets shall appoint a committee
of not less than three members and the committee so appointed shall, from and
after the date of merger, consolidation or transfer of assets, have the powers,
authorities, duties and discretions herein in this Agreement given to the
Company (except the authority given in paragraph 2 hereof regarding the
Executive's salary during the employment period). Such committee shall thereupon
become the "Company" for the purposes of this Agreement (except as herein in
this paragraph noted), and all decisions of such committee shall bind any such
successor corporation. In the event that any member of the original committee
appointed pursuant to the terms of this paragraph shall be unable to act or to
continue to act as a member of such committee the members then acting on such
committee shall appoint a successor member thereof as long as the terms of this
Agreement require the existence of the Company.
6. ASSIGNMENT OF BENEFITS. The interests of the Executive and
beneficiaries in payments hereunder shall not be subject to the claims of any
creditor, any spouse for alimony or support, or others, or to legal process, and
may not be voluntarily or involuntarily alienated or encumbered.
7. FACILITY OF PAYMENT. If amounts become payable to a minor or to a
person under legal disability or to a person not adjudicated incompetent but
who, by reason of illness or mental or physical disability, is in the opinion of
the Company unable properly to manage his or her affairs, then such amounts
shall be paid or expanded only in such of the following ways as the Company
deems
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best; (a) to the recipient directly; (b) to the legally appointed guardian or
conservator of the recipient; (c) to a custodian for the recipient under a
Uniform Gifts to Minors Act; (d) by the Company directly for the benefit of the
recipient; (e) to an adult relative or friend in reimbursement for amounts
properly advanced for the benefit of the recipient.
8. TERMINATION OF CONTRACT. While the Company expects to continue this
contract until fully performed, it reserves the right by action of its Board of
Directors to terminate the contract in whole or in part at any time during the
Executive's employment period by written notice to the Executive, except that
upon such termination the Executive shall be entitled to an amount of retirement
income and death benefits computed hereunder as if such termination date was his
retirement date, provided he satisfies all other requirements herein stated for
the payment of such benefits. The payment of such retirement income or death
benefits, however, shall not commence until the Executive attains his actual
retirement date as herein defined or dies prior thereto.
9. PRIOR AGREEMENTS. This Agreement terminates all prior individual
retirement income contracts if any between the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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EXECUTIVE
ATTEST: BINKS MANUFACTURING COMPANY
BY: BY:
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Secretary President
(corporate seal)
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