XXXX COMPANY
1998
SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
THIS AGREEMENT, made this 16th day of December, 1998, by and between
XXXX COMPANY, West Bend, Wisconsin (hereinafter referred to as the "Company"),
and ________________, of West Bend, Wisconsin (hereinafter referred to as the
"Employee"):
W I T N E S S E T H:
WHEREAS, the Employee is currently employed by the Company in the capacity
of Vice President and in such position can contribute materially to its
continued growth and development and to its future financial success; and
WHEREAS, the Company desires to insure insofar as possible that the
Company will have the benefit of the Employee's full services and executive
capacities for future years;
NOW, THEREFORE, in consideration of services rendered by the Employee to
the Company, it is agreed as follows:
Section 1. Definitions.
(a) "Average Monthly Compensation" means one-sixtieth (1/60th) of the
Employee's base salary and cash bonus from the Company for the highest five
(5) calendar years within the last ten (10) completed calendar years preceding
the date of the Employee's termination of employment with the Company. In the
event the Employee does not have five (5) calendar years of employment, only
the number of full months from the date of hire through the December preceding
termination of employment shall be used to determine Average Monthly
Compensation. Cash bonus means the cash distributed to the Employee during a
calendar year pursuant to the Company "SVA" Shareholder Value Added or similar
incentive/bonus compensation program. Base salary and cash bonus for this
purpose include any salary reduction deferrals pursuant to a cash or deferred
arrangement or a cafeteria plan pursuant to Internal Revenue Code ("Code")
Sections 401(k) or 125.
(b) "Beneficiary" means the person, trust and/or other entity
designated by the Employee on the form most recently filed with the Secretary
of the Company prior to the Employee's death. In the absence of a valid
designation, the Beneficiary shall be the Employee's estate.
(c) "Disability means a physical or mental condition which totally and
presumably permanently prevents the Employee from engaging in any
substantially gainful activity as determined in accordance with Section 4.03
of the Xxxx Company Retirement Income Plan "B".
(d) "Vested Percentage" means the percentage of the supplemental
retirement benefit in Section 2 earned by the Employee, subject in any event
to the forfeiture provision of Section 4 and the change in control provision
of Section 5. The Vested Percentage is one hundred percent (100%) in any of
the following circumstances:
(i) after the Employee completes five (5) years of Vesting Service;
(ii) if the Employee suffers a Disability; or
(iii) if the Employee retires from the Company after attainment of
age sixty-two (62).
In the event the Employee does not have a Vested Percentage of one hundred
percent (100%), he shall receive ten percent (10%) vesting for each complete
year of Vesting Service.
(e) "Vesting Service" means the period of the Employee's consecutive
employment with the Company from _______________________, through the date of
termination of employment.
Section 2. Supplemental Retirement Benefits.
(a) The amount of the monthly supplemental retirement benefit shall be
the Employee's Vested Percentage times an amount equal to twenty percent (20%)
of the Employee's Average Monthly Compensation.
(b) The monthly supplement shall be payable to the Employee commencing as
of the first day of the month following the earlier to occur of:
(i) age sixty-five (65); or
(ii) the later of termination of employment from the Company or age
sixty two (62).
The supplement shall continue to be paid to the Employee for a period of
fifteen (15) years.
(c) In the event the Employee commences receiving the supplement but dies
prior to the end of the payment period, the remaining monthly payments in the
fifteen (15)-year period shall be made to the Beneficiary.
(d) In the event the Employee dies after termination of employment from
the Company but prior to the commencement of benefits pursuant to (b) above,
the monthly supplement calculated pursuant to subsection (a) above shall be
paid to the Beneficiary for the fifteen (15)-year period commencing as of the
first day of the month following the later to occur of the Employee's death or
the date the Employee would have attained (or if applicable, did attain) age
sixty-two (62).
Section 3. Pre-Retirement Death Benefit.
(a) In the event the Employee dies prior to commencement of the
supplemental retirement benefit under Section 2(b) above and while employed by
the Company, in lieu of any payment pursuant to Section 2 above, a pre-
retirement death benefit shall be paid to the Beneficiary.
(b) The death benefit shall be comprised of five (5) payments, the
first being due as of the last day of the month following the Employee's
death. Each succeeding payment shall be made on successive anniversaries of
the first payment due date.
(c) The amount of each of the five (5) payments shall be thirty
percent (30%) of the Employee's annual salary as of the Employee's date of
death.
Section 4. Non-Competition Requirement. Employee agrees that for a
period of two (2) years after termination of active employment hereunder, the
Employee shall not, except as permitted by the Company's prior written
consent, engage in, be employed by, or in any way advise or act for, or have
any financial interest in any business which is a competitor of the Company.
The ownership of minority and non-controlling shares of any corporation whose
shares are listed on a recognized stock exchange or traded in an over-the-
counter market shall not be deemed as constituting a financial interest in
such corporation. If the Employee shall fail to comply with any of the
foregoing conditions, he shall forfeit all right to any payments pursuant to
Section 2 hereof which would otherwise be payable to him thereafter.
Section 5. Change of Control. Notwithstanding the definition of Vested
Percentage in Section 1 hereof, an Employee shall be one hundred percent
(100%) vested, subject to Section 4, in the event there is a change of control
of the Company. For purposes of this Agreement, a "change in control of the
Company" occurs when:
(i) securities of XXXX representing 25% or more of the
combined voting power of XXXX'x then outstanding voting
securities are acquired pursuant to a tender offer or an
exchange offer; or
(ii) the shareholders of XXXX approve a merger or consolidation of XXXX
with any other corporation as a result of which less than fifty
percent (50%) of the outstanding voting securities of the
surviving or resulting entity are owned by the former shareholders
of XXXX (other than a shareholder who is an affiliate, as defined
under rules promulgated under the Securities Act of 1933, as
amended, of any party to such consolidation or merger); or
(iii) the shareholders of XXXX approve the sale of substantially all of
XXXX'x assets to a corporation which is not a wholly-owned
subsidiary of XXXX; or
(iv) any person becomes the "beneficial owner," as defined under rules
promulgated under the Securities Exchange Act of1934, as amended,
directly or indirectly, of securities of XXXX representing twenty-
five percent (25%) or more of the combined voting power of XXXX s
then outstanding securities the effect of which (as determined by
the Board) is to take over control of XXXX; or
(v) during any period of two consecutive years, individuals who, at the
beginning of such period, constituted the Board of Directors of XXXX
cease, for any reason, to constitute at least a majority thereof,
unless the election or nomination for election of each new director
was approved by the vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the
period.
Section 6. No Rights of Employment. Nothing herein contained shall be
deemed to confer upon the Employee any right to continue in the employ of the
Company nor to interfere with the right of the Company to terminate his
employment at any time.
Section 7. Employee's Rights Non-Assignable. Neither the Employee nor
the Beneficiary shall have the power to transfer, assign, anticipate,
mortgage, or otherwise encumber in advance any of the payments provided in
this Agreement; nor shall any of said payments nor any assets of the Company,
including any insurance policies owned by the Company, be subject to seizure
for the payment of any of the recipient's debts, judgments or other
obligations arising by operation of law or in the event of bankruptcy,
insolvency or otherwise.
Section 8. Company Not Required to Fund This Agreement. The Company is
not obligated to set aside or credit the Employee or the Beneficiary with
funds to provide for the payment of the amounts due under this Agreement, and
nothing in this Agreement shall be construed as creating a trust fund of any
kind for the benefit of the Employee or the Beneficiary.
Section 9. Administration. This Agreement shall be administered by the
Xxxx Company Compensation and Benefits Committee (herein referred to as the
"Committee"). If the Employee is also a Committee member, he shall abstain
from any deliberations or vote on any matter in connection with this
Agreement.
Section 10. Successors and Assigns. This Agreement shall inure to and
be binding upon the successors and assigns of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Attest: XXXX COMPANY
_________________________ ____________________________
Its: President
EMPLOYEE
_________________________ _____________________________
Witness as to
SUPPLEMENTAL RETIREMENT BENEFIT AGREEMENT
BENEFICIARY DESIGNATION
This is to certify that I wish to make the following beneficiary
designation for any death benefit which may become payable under my Xxxx
Company Supplemental Retirement Benefit Agreement:
Primary Beneficiary
Name___________________________ ______________________________
(Please Print) Social Security Number
Address _________________________ ______________________________
Relationship
_________________________
Secondary Beneficiary
Name___________________________ ______________________________
(Please Print) Social Security Number
Address _________________________ ______________________________
Relationship
_________________________
Date ___________________________ ______________________________
Signature of Employee
