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EXHIBIT 10.12
SALARY CONTINUATION AGREEMENT
This Agreement, made and entered into this 19th day of January, 1995,
by and between Meridian Diagnostics, Inc., a corporation organized and existing
under the laws of the State of Ohio, hereinafter referred to as "Corporation",
and Xxxx X. Xxxxxxxxx, a key employee and executive of the Corporation,
hereinafter referred to as "Executive".
The Executive has been in the employ of the Corporation for three (3)
years and has now and for years past faithfully served the Corporation. It is
the consensus of the Board of Directors that Executive's services have been of
exceptional merit, in excess of the compensation paid and an invaluable
contribution to the profits and position of the Corporation in its field of
activity. The Board further believes that Executive's experience, knowledge of
corporate affairs, reputation and industry contacts are of such value and his
continued services so essential to Corporation's future growth and profits that
it would suffer severe financial loss should Executive terminate his services.
Accordingly, it is the desire of the Corporation and the Executive to
enter into this Agreement under which the Corporation will agree to make
certain payments to Executive upon his retirement or disability and,
alternatively, to his beneficiaries in the event of his premature death while
employed by Corporation.
Therefore, in consideration of Executive's services performed in the
past and those to be performed in the future and based upon the mutual promises
and covenants herein contained, the Corporation and the Executive, agree as
follows:
I. ARTICLE ONE - DEFINITIONS
A. Effective Date
The effective date of this Agreement shall be January 19,
1995.
B. Normal Retirement Date
The Normal Retirement Date shall mean retirement from
service with the Corporation which becomes effective on the
first day of the calendar month following the month in which
the Executive reaches his 62nd birthday.
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C. Early Retirement Date
Early Retirement Date shall mean a retirement from service
which is effective prior to the Normal Retirement Date,
stated above, provided the Executive has attained age 60 and
shall have completed 15 years of service.
X. Xxxxxxxxx Benefits
Severance Benefits shall mean those benefits to which the
Executive is entitled in the event he is discharged by the
Corporation without due cause. Any dispute as to
determination of "due cause" shall be subject to the terms
of Article VI.B., "Claims Procedure".
E. Termination of Service
Termination of Service shall mean voluntary resignation of
service by the Executive (exclusive of early retirement or
disability) or the Corporation's discharge of the Executive
for due cause.
II. ARTICLE TWO - EMPLOYMENT
A. Employment
Corporation agrees to employ Executive in such capacity as
the Corporation may from time to time determine with such
duties, responsibilities and compensation as determined by
the Board of Directors.
Executive agrees to remain in the Corporation's employment;
to devote his full time and attention exclusively to the
business of the Corporation and to use his best efforts to
provide faithful and satisfactory service to Corporation.
Employment services shall include temporary disability not
to exceed three months and "leaves of absence" specifically
granted Executive by the Board of Directors.
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B. No Employment Agreement Created
No provision of this Agreement shall be deemed to restrict
or limit any existing employment agreement by and between
the Corporation and the Executive nor shall any conditions
herein create specific employment rights to the Executive
nor limit the right of the Employer to discharge the
Executive with or without cause. In a similar fashion, no
provision shall limit the Executive's rights to voluntarily
sever his employment at any time.
III. ARTICLE THREE - BENEFITS
The following benefits provided by the Corporation to the Executive
are in the nature of a fringe benefit and shall in no event be
construed to effect nor limit the Executive's current or prospective
salary increases, cash bonuses or profit-sharing distributions or
credits. All benefits paid pursuant to the terms of this Agreement are
subject to applicable federal, state and local withholding and income
taxes.
A. Retirement Benefits
If Executive shall remain in the employment of the
Corporation until the "Normal Retirement Date" defined at
Article One, Paragraph 2, then, in such event, he shall be
entitled to receive monthly from the Corporation the sum of
$2,701.50, commencing on the first day of the month
following such "Normal Retirement Date" and continuing for a
period of 120 months. In the event the Executive should die
following "Normal Retirement" but before the expiration of
120 months, the unpaid balance of such monthly payments
shall be paid monthly for the remainder of such period to
the beneficiary selected by Executive in the Beneficiary
Designation Form provided by the Corporation. In the absence
of or failure of the Executive to designate a beneficiary,
the unpaid balance shall be commuted at 8% and paid in a
lump sum to the personal representative of Executive's
estate.
B. Early Retirement or Severance Benefit
Executive shall have the additional elective right to
receive "Early Retirement" or "Severance Benefits", as those
terms were earlier defined, provided he shall have attained
the age of 60 and has completed 15 years of
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service or, in the alternative, is discharged without
cause.
Upon Executive's election to receive such benefits, he
shall be entitled to receive monthly (beginning on the
first day of the month following written notice to the
Corporation) level retirement benefits determined by:
Multiplying the Normal Retirement Benefit determined in
Paragraph A., above, by a fraction:
The numerator of which is the actual number
of months the Executive has been employed
by the Corporation from the effective date
of this Agreement until his early
retirement or the date of his discharge
without cause, and;
The denominator of which is the total
number of months the Executive would have
worked from the effective date of this
Agreement until his Normal Retirement Date,
as earlier defined.
Such Early Retirement or Severance Benefits, as determined
above, shall be payable for a continuous period of 120
months provided, however, that should the Executive die
prior to the expiration of 120 months, the unpaid balance
shall continue for the remainder of such period to the
beneficiary selected by the Executive and filed with the
Corporation. In the absence of or a failure to designate a
beneficiary, the unpaid balance shall be commuted at 8% and
paid in a lump sum to the personal representative of the
Executive's estate.
C. Termination of Service or Voluntary Resignation
Should Executive voluntarily resign from his employment or
should he be discharged for cause (exclusive of Early
Retirement), all Executive's benefits under this Agreement
shall be forfeited and this Agreement shall become null and
void. If a dispute arises as to discharge "for cause", such
dispute shall be resolved as set forth in Article VI.B.
D. Death Benefit Prior to Retirement
Should the Executive die prior to the Normal Retirement Date
(exclusive of Early Retirement or Severance as
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defined elsewhere herein), Corporation agrees to pay to the
Executive's designated beneficiary within 60 days following
the Executive's death the sum of $4,166.67 for a continuous
period of 84 months. If the designated beneficiary should
die prior to the expiration of the 84 months, the remaining,
unpaid installments shall be commuted at 8% and paid in a
lump sum to the personal representative of the designated
beneficiary.
Executive shall declare his designated beneficiary in
writing on a form provided by the Corporation. In the
absence of or a failure to designate a beneficiary, or in
the event the designated beneficiary shall have predeceased
the Executive, the unpaid balance shall be commuted at 8%
and paid in a lump sum to the personal representative of the
Executive's estate.
In the event the Executive's death shall be the result of
suicide within a two-year period following the effective
date of this Agreement, then no death benefits shall be
payable to the Executive or his designated beneficiary.
IV. ARTICLE FOUR - RESTRICTIONS UPON FUNDING
Corporation shall have no obligation to set aside, earmark or entrust
any fund or money with which to pay its obligations under this
Agreement. The Executive, his beneficiaries or any successor in
interest to him shall be and remain simply a general creditor of the
Corporation in the same manner as any other creditor having a general
claim for matured and unpaid compensation.
The Corporation reserves the absolute right at its sole discretion to
either fund the obligations undertaken by this Agreement or to refrain
from funding the same and to determine the extent, nature, and method
of such funding.
Should Corporation elect to fund this Agreement, in whole or in part,
through the purchase of life insurance, mutual funds, disability
policies or annuities, the Corporation reserves the absolute right, in
its sole discretion, to terminate such funding at any time, in whole
or in part. At no time shall Executive be deemed to have any lien nor
right, title or interest in or to any specific funding investment or
to any assets of the Corporation.
If Corporation elects to invest in a life insurance, disability or
annuity policy upon the life of Executive, then
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Executive shall assist the Corporation by freely submitting to a
physical exam and supplying such additional information necessary to
obtain such insurance or annuities.
V. ARTICLE FIVE - MISCELLANEOUS
A. Alienability and Assignment Prohibition
Except to the extent provided below, neither Executive, his
widow nor any other beneficiary under this Agreement shall
have any power or right to transfer, assign, anticipate,
hypothecate, mortgage, commute, modify or otherwise encumber
in advance any of the benefits payable hereunder nor shall
any of said benefits be subject to seizure for the payment
of any debts, judgments, alimony or separate maintenance
owed by the Executive or his beneficiary, nor be
transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event Executive or any
beneficiary attempts assignment, commutation, hypothecation,
transfer or disposal of the benefits hereunder, the
Corporation's liabilities shall forthwith cease and
terminate. Notwithstanding the preceding prohibition, in the
event Executive and his spouse divorce, the value of the
benefits payable hereunder may be subject to the division
for the benefit of Executive's spouse pursuant to a divorce
decree or other similar domestic relations order.
B. Binding Obligation of Corporation and Any Successor in
Interest
This Agreement shall be binding upon the parties hereto,
their successors, beneficiaries, heirs and personal
representatives.
C. Amendment and Revocation
It is agreed by and between the parties hereto that, during
the lifetime of the Executive, this Agreement may be amended
or revoked at any time or times, in whole or in part, by the
mutual written assent of the Executive and the Corporation.
For any benefits not yet accrued pursuant to Article III.
B., the Corporation shall have the sole discretion to amend
or revoke this Agreement at any time or times, in whole or
in part, by a written amendment. For purposes hereof,
benefits shall be considered to have accrued only to the
extent of the Executive's entitlement under Article III. B.
determined
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as if the Executive is discharged without cause as of the
date of the amendment.
D. Gender
Whenever in this Agreement words are used in the masculine
or neuter gender, they shall be read and construed as in the
masculine, feminine or neuter gender, whenever they should
so apply.
E. Effect on Other Corporation Benefit Plans
Nothing contained in this Agreement shall affect the right
of the Executive to participate in or be covered by any
qualified or non-qualified pension, profit-sharing, group,
bonus or other supplemental compensation or fringe benefit
plan constituting a part of Corporation's existing or future
compensation structure.
F. Non-compete Agreement
In the event the Executive violates any non-competition and
confidentiality agreement (or similar agreement) with the
Corporation, determined in the sole and absolute discretion
of the Plan Administrator, no further benefits shall be
payable pursuant to this Agreement. This provision is in
addition to any remedies the Corporation might otherwise
have for such a violation and does not otherwise modify any
such agreement.
G. Headings
Headings and Subheadings in this Agreement are inserted for
reference and convenience only and shall not be deemed a
part of this Agreement.
H. Applicable Law
The validity and interpretation of this Agreement shall be
governed by the laws of the State of Ohio.
VI. ERISA PROVISIONS
A. Named Fiduciary and Plan Administrator
The "Named Fiduciary and Plan Administrator" of this plan
shall be the Compensation Committee of the Board of
Directors of the Corporation. The Named Fiduciary and
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Plan Administrator shall be responsible for the management,
control and administration of the Salary Continuation
Agreement as established herein. The Named Fiduciary and
Plan Administrator may delegate to others certain aspects of
the management and operation responsibilities of the plan
including the employment of advisors and the delegation of
ministerial duties to qualified individuals. The Named
Fiduciary and Plan Administrator shall have all powers
necessary to discharge its duties under the Agreement,
including the sole and absolute authority to interpret and
construe the terms and provisions of this Agreement and to
determine eligibility for benefits hereunder.
B. Claims Procedure
In the event that benefits under this Agreement are not paid
to the Executive (or to his beneficiary in the case of the
Executive's death) and such claimants feel they are entitled
to receive such benefits, then a written claim must be made
to the Named Fiduciary and Plan Administrator named above
within 60 days from the date payments are refused. The Named
Fiduciary and Plan Administrator shall review the written
claim and if the claim is denied, in whole or in part, shall
provide in writing within 90 days of receipt of such claim,
the specific reasons for such denial, reference to the
provisions of this Agreement upon which the denial is based
and any additional material or information necessary to
perfect the claim. Such written notice shall further
indicate the additional steps to be taken by claimants if a
further review of the claim denial is desired. A claim shall
be deemed denied if the Named Fiduciary and Plan
Administrator fails to take any action within the aforesaid
90-day period.
If claimants desire a second review, they shall notify the
Named Fiduciary and Plan Administrator in writing within 60
days of the first claim denial. Claimants may review the
Agreement or any documents relating thereto and submit any
written issues and comments they may feel appropriate. In
its sole discretion, the Named Fiduciary and Plan
Administrator shall then review the second claim and provide
a written decision within 60 days of receipt of such claim.
This decision shall likewise state the specific reasons
for the decision and shall include reference to specific
provisions of the Agreement upon which the decision is
based. This decision of the Named Fiduciary and Plan
Administrator
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shall be binding and conclusive upon all parties; and may be
overturned by a court of competent jurisdiction only upon a
finding that the decision was arbitrary and capricious.
IN WITNESS WHEREOF, the parties hereto acknowledge that each has
carefully read this Agreement and executed the original thereof on the 27th day
of April, 1995 and that, upon execution, each has received a conforming copy.
Xxxxxx X. Xxxxx Xxxx X. Xxxxxxxxx
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WITNESS EXECUTIVE
Xxxxxx X. Xxxxx Xxxxxx Xxxxx
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WITNESS CORPORATION
