Exhibit 10.10
DEFERRED BENEFIT AGREEMENT
BETWEEN
THE ▇▇▇▇▇▇▇ COMPANIES, INC.
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THIS AGREEMENT, effective as of March 19, 2002 (the "Effective Date"), is
by and between The ▇▇▇▇▇▇▇ Companies, Inc., a Wisconsin corporation (the
"Company") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Executive"), parties to this Agreement.
RECITALS
WHEREAS, the Executive is a key employee performing valuable services for a
wholly owned subsidiary of the Company, and the Company desires to retain the
Executive in such service; and
WHEREAS, it is to the mutual benefit of both parties to this Agreement that
the relationship continue and that the Executive continue to contribute to the
operation of the Company's affiliate, and
WHEREAS, the Company desires to reward the Executive for his past service,
loyalty and counsel, and wishes to provide an inducement to encourage
Executive's continued efforts on behalf of the Company's affiliate by agreeing
to issue shares of the Company's common stock to the Executive as of January 31,
2005 and by paying Executive a special recognition award, also as of January 31,
2005.
AGREEMENT
NOW, THEREFORE, the Company and the Executive agree, in consideration of
the mutual promises set forth in this Agreement, as follows:
1. Deferred Restricted Stock and Special Recognition Award. As of the
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Effective Date, the Company shall recognize an obligation to issue to
the Executive, in accordance with Section 2 of the Agreement, 5,000
shares of the Company's common stock (the "Deferred Restricted
Stock"), as of January 31, 2005. In addition, as of the Effective
Date, the Company shall recognize an obligation to pay to the
Executive, in accordance with Section 2 of the Agreement, a special
recognition award of $55,000 (the "Special Recognition Award"), as of
January 31, 2005.
2. Issuance of Deferred Restricted Stock and Payment of Special
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Recognition Award. Effective as of January 31, 2005, the Company
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shall issue to the Executive the Deferred Restricted Stock, and shall
pay to the Executive the Special Recognition Award, promised under
Section 1 of the Agreement. The issuance of such Deferred Restricted
Stock to the Executive shall occur in a single issuance of shares on
January 31, 2005. The Special Recognition Award promised under
Section 1 of this Agreement shall be paid to the Executive in a single
sum on January 31, 2005. Notwithstanding the foregoing, the Deferred
Restricted Stock and Special Recognition Award promised under Section
1 of this Agreement shall be issued or paid, whichever is applicable,
to the Executive (or in the event of the Executive's death, to the
Executive's designated beneficiary) as soon as practicable after the
Executive's death, disability (as defined in Section 22(e)(3) of the
Internal Revenue Code), termination of employment by the Company and
all affiliates, or upon a "change of control" of the Company, if such
death, disability, termination of employment by the Company and all
affiliates, or "change of control" occurs before January 31, 2005.
For this purpose, "change of control" means: (a) a sale of over 50%
of the stock of the Company measured in terms of voting power, other
than in a public offering or in connection with the acquisition by the
Company of a business filing reports under Section 13 or 15(d) of the
Securities Exchange Act of 1934; or (b) the sale by the Company of
over 50% of its business or assets in one or more transactions over a
consecutive 12 month period; or (c) a merger or consolidation by the
Company with or into any other corporation or entity such that the
Company's shareholders prior to the transaction or transactions do not
own at least 50% of the surviving entity measured in terms of voting
power.
At the Company's option, the Shares of Deferred Restricted Stock to be
issued to the Executive under this Agreement may be authorized but as
yet unissued shares, treasury shares or shares of the Company's common
stock acquired on the open market.
3. No Trust Created. Nothing in this Agreement, and no action taken
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pursuant to the provisions of this Agreement, shall create or be
construed to create a trust of any kind, or a fiduciary relationship
between the Company and the Executive, his designated beneficiary or
any other person. The right of any person to receive Deferred
Restricted Stock and/or the Special Recognition Award under the
provisions of this Agreement shall be an unsecured claim against the
Company, and no person shall by virtue of the provisions of this
Agreement have any interest in such Deferred Restricted Stock or
Special Recognition Award. To the extent that any person acquires a
right to receive benefits under this Agreement, such right shall be no
greater than the right of any unsecured general creditor of the
Company.
4. Designated Beneficiary. The Executive shall designate one or more
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beneficiaries to receive any stock and cash benefits under this
Agreement in the event of the Executive's death prior to issuance or
payment, whichever is applicable. The Executive may change the
designated beneficiary at any time by filing a new beneficiary
designation with the Company in a form as prescribed by the Company.
The beneficiary designation form on file with the Company at the
Executive's death shall be controlling. If the Executive fails to
validly designate a beneficiary, any Deferred Restricted Stock to be
issued and Special Recognition Award to be paid after the death of the
Executive shall be issued and paid to the Executive's estate.
5. Assignment Prohibited. The benefits promised hereunder may not be
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sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and
distribution.
6. Dividends, Other Distributions. Prior to the issuance of Deferred
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Restricted Stock hereunder, the Company shall make cash payments to
the Executive in amounts equal to the dividends the Executive would
have been entitled to receive had he been the actual owner of 5,000
shares of the Company's common stock. Such cash payments will be made
at approximately the same time as dividends are paid on the Company's
common stock. Except as provided in this Section 6 and except as
provided in Section 9, prior to the issuance of the Deferred
Restricted Stock, the Executive shall be entitled to no other
distributions which may be paid with respect to the Company's common
stock.
7. Binding Agreement. This Agreement constitutes the entire agreement
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between the parties, may be amended only in writing with the consent
of both parties, and shall be binding upon the parties hereto, their
heirs, executors, administrators, successors and assigns, including
any successor of the Company resulting from a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substantially
all of the business and/or assets of the Company.
8. Withholding.
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(a) The Company shall have the power and the right to deduct or
withhold, or require the Executive to remit to the Company, an
amount sufficient to satisfy federal, state and local taxes
(including the Executive's FICA obligations) required by law to
be withheld with respect to any taxable event occurring in
connection with the issuance of Deferred Restricted Stock and the
payment of the Special Recognition Award hereunder.
(b) With respect to any withholding required upon the issuance of
Deferred Restricted Stock, the Executive may elect, subject to
the approval of the Company, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold
shares of Deferred Restricted Stock having a Fair Market Value on
the date the tax is to be determined equal to the minimum
statutory tax liability which could be imposed on the
transaction. Any election shall be irrevocable, made in writing,
and signed by the Executive.
9. Adjustments in Deferred Restricted Stock Shares. In the event of any
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merger, reorganization, consolidation, recapitalization, separation,
liquidation, partial liquidation, stock dividend, extra-ordinary
dividend, split-up, spin-off, share combination, or other change in
the corporate structure of the Company which affects the Company's
common stock, an appropriate and equitable adjustment shall be made in
the number of shares of Deferred Restricted Stock, to prevent dilution
or enlargement of rights and to preserve the benefit of the Agreement
to the Company and the Executive.
10. Impact on Other Benefits. Neither the promise to issue Deferred
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Restricted Stock or to pay the Special Recognition Award, nor the
issuance or payment of such Deferred Restricted Stock and Special
Recognition Award under this Agreement, shall be taken into account in
determining the Executive's benefits under any other pension, profit
sharing, deferred compensation or welfare benefit plan or program
maintained by the Company or any affiliate, unless specifically
provided to the contrary in such other plan or program.
11. Executive's Employment. Nothing in this Agreement shall interfere
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with or limit in any way the right of the Company or any affiliate to
terminate the Executive's employment at any time, nor confer upon the
Executive any right to continue in the employ of the Company for any
given period or upon any specific terms or conditions.
12. Governing Law. This Agreement shall be construed in accordance with
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and governed by the internal laws of the State of Wisconsin to the
extent not preempted by federal law.
13. Requirements of Law. The issuance of Deferred Restricted Stock and
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the payment of the Special Recognition Award under this Agreement
shall be subject to all applicable laws, rules, and regulations, and
to any approvals by governmental agencies or national securities
exchanges as may be required, and the parties shall make a good faith
effort to implement this Agreement in compliance with such applicable
laws, rules, regulations and approvals.
14. Accounting Treatment. The parties intend that the issuance of
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Deferred Restricted Stock under this Agreement result in fixed, rather
than variable, accounting treatment to the Company and shall implement
this Agreement in a manner consistent with such intent.
IN WITNESS WHEREOF, the parties have executed this Agreement on this 4th
day of June, 2002, to be effective as of the Effective Date first above written.
THE ▇▇▇▇▇▇▇ COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Title: Sr. VP & Gen Counsel
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EXECUTIVE:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
