EXHIBIT 54
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
(as restated)
AGREEMENT by and between AMERICAN PRECISION INDUSTRIES INC. (the
"Company), a Delaware corporation with its principal office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Employee"), residing at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, dated as of October 15,
1999.
WITNESSETH:
WHEREAS, the Employee is currently employed by the Company in the
capacity of Vice President; and
WHEREAS, the Company desires to continue to provide the Employee with
additional incentive in connection with his employment by the Company; and
WHEREAS, the Employee is a member of a select management group of the
Company;
NOW, THEREFORE, the parties agree as follows:
1. Conditions.
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(a) The payment of benefits to the Employee or designated
beneficiaries under this Agreement is conditioned upon the Employee's compliance
with the terms of the this Agreement.
(b) The Company shall withhold Federal, state, and local taxes with
respect to all payments and benefits under this Agreement to the extent required
by law.
2. Normal Retirement.
-----------------
(a) If the Employee retires from employment with the Company on or
after his 65/th/ birthday or if the Employee becomes totally and permanently
disabled while employed by the Company, the Company shall pay to the Employee
the amount specified under paragraph I in Schedule A to this Agreement (the
"Normal Retirement Benefit"), reduced in accordance with Section 7.
(b) Subject to Section 8, such amount shall be paid in 180 equal
monthly installments, the first of which shall be paid within thirty days after
the Employee ceases to be employed by the Company, and the balance of which
shall be paid on or about the first business day of each following month for 179
months.
(c) If the Employee dies after becoming entitled to payment under this
Section 2, but before all of the payments provided for have been made, the
unpaid balance of the payments shall be paid by the Company to the designated
beneficiaries when due.
3. Involuntary Termination.
-----------------------
(a) If the Employee's employment is terminated involuntarily (that is,
by the Company) before age 65, he will receive the percentage of the Normal
Retirement Benefit determined in accordance with the following vesting schedule,
reduced in accordance with Section 7:
===================================
Percentage
Full Years of Service Vested
-----------------------------------
Less than ten 0
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Ten 50
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Eleven 55
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Twelve 60
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Thirteen 65
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Fourteen 70
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Fifteen 75
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Sixteen 80
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Seventeen 85
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Eighteen 90
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Nineteen 95
-----------------------------------
Twenty or more 100
===================================
(b) Subject to Section 8, the amount so determined shall be paid in
180 equal monthly installments, the first of which shall be paid within thirty
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days after the Employee ceases to be employed by the Company, and the balance of
which shall be paid on or about the first business day of each following month
for 179 months.
(c) If the Employee dies after becoming entitled to payment under this
Section 3, but before all of the payments provided for have been made, the
unpaid balance of the payments shall be paid by the Company to the designated
beneficiaries when due.
4. Voluntary Termination.
---------------------
If the Employee voluntarily resigns from employment with the Company
before age 65 he shall forfeit all benefits under this Agreement.
5. Early Retirement.
----------------
(a) If the Employee voluntarily retires early, the Board of Directors
of the Company shall determine, in its discretion, whether the Employee shall be
entitled to any benefit under this Agreement.
(b) If the Employee retires early on an involuntary basis, ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, shall apply to determine the benefit, if any, to which
the Employee shall be entitled under this Agreement.
6. Change in Control.
-----------------
(a) As used in Section 6, the terms "Change in Control", "Protection
Period", "Company", "Cause", and "Good Reason" shall have the meanings given to
them in the Change in Control Agreement entered into by and between the Company
and the Employee as of October 21, 1996.
(b) If, during a Protection Period, the Employee's employment is
terminated by the Company other than for Cause or if the Employee terminates his
employment for Good Reason, then the Company shall pay to the Employee the
amount of the Normal Retirement Benefit under the provisions of this Section 6,
notwithstanding any conflicting provisions of Sections 2, 3, 4, or 5, but
reduced in accordance with Section 7.
(c) Subject to Section 8, such amount shall be paid in 180 equal
monthly installments, the first of which shall be paid within thirty days after
the Employee ceases to be employed by the Company and the balance of which
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shall be paid on or about the first business day of each following month for 179
months.
(d) If the Employee dies after becoming entitled to payment under this
Section 6, but before all the payments provided for have been made, the unpaid
balance of the payments shall be paid by the Company to the designated
beneficiaries when due.
7. Reduction of Benefits.
---------------------
(a) The Company and the Employee have entered into a Life Insurance
Split-Dollar Agreement dated as of May 1, 1999, pursuant to which beneficiaries
of the Employee may receive a death benefit if the Employee dies while employed
by the Company and the Employee may own an interest in the cash surrender value
of a life insurance policy (the "Policy") at the time his employment with the
Company terminates by retirement or otherwise. Notwithstanding any contrary
provision of this Agreement, the benefits the Company is otherwise obligated to
pay to the Employee pursuant to Sections 2, 3, 5, or 6 shall be reduced in the
manner provided in Paragraph (b) below by the amount of the Employee's interest
in the cash surrender value of the Policy on the date the Employee ceases to be
employed by the Company.
(b) The reduction to which Paragraph (a) above refers shall be
calculated as described in (i) through (v) below as of the date on which the
Employee ceases to be employed by the Company:
(i) Calculate the monthly benefit under Sections 2, 3,
5, or 6, as the case may be.
(ii) Convert the monthly benefit (from (i) above) into an
after-tax monthly benefit, using the after-tax rate specified under paragraph II
in Schedule A to this Agreement (the "After-Tax Rate").
(iii) Calculate the monthly annuity amount that would be
payable to the Employee monthly for 180 months if an amount equal to the
Employee's interest in the cash surrender value of the Policy were converted
into an annuity with a term certain of 180 months using an interest rate equal
to the applicable annual interest rate specified under paragraph III in Schedule
A to this Agreement (the "Applicable Annual Rate").
(iv) Convert the monthly annuity amount (from (iii)
above) into an after-tax monthly annuity amount, using the After-Tax Rate, but
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applying the After-Tax Rate only to that part of the monthly annuity amount that
would not represent the return of the Employee's investment in the Policy.
(v) Subtract the after-tax monthly annuity amount (from
(iv) above) from the after-tax monthly benefit (from (ii) above). Divide the
remainder, if any, by the After-Tax Rate; the quotient is, notwithstanding the
provisions of Sections 2, 3, 5, and 6, the monthly benefit payable for 180
months in accordance with the terms of the relevant section of this Agreement.
8. Acceleration of Payments; Frequency of Payments.
-----------------------------------------------
(a) At the Company's option or, if amounts become payable on a Change
in Control pursuant to Section 6 of this Agreement, at the Employee's option,
amounts payable under this Agreement may be paid in a lump sum rather than over
a period of years, discounted at the Applicable Annual Rate in effect as of the
date the Employee ceases to be employed by the Company. Should the Employee
exercise the foregoing option, the Company shall make the lump sum payment to
the Employee within thirty days after he notifies the Company of the exercise of
the option.
(b) The Company may, at is option, but subject to Paragraph (a) above,
divide any amount due under this Agreement in any month into two or more
installments to be paid during that month at times corresponding to the
Company's regular pay dates for executive employee. The Company's exercise of
the foregoing option shall not be cause for an adjustment of the amount
otherwise payable under this Agreement.
9. Claims Procedure.
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(a) The administrator for purposes of the claims procedure under this
Agreement is the Chief Financial Officer of the Company. The business address
and telephone number of the claims administrator is: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; telephone: (▇▇▇) ▇▇▇-▇▇▇▇.
(b) The Company shall have the right to change the claims
administrator. The Company shall also have the right to change the address and
telephone number of the claims administrator. The Company shall give the
Employee written notice of any of the foregoing changes.
(c) Benefits shall be paid in accordance with the provisions of this
Agreement.
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(d) The claims administrator shall present any disputed claim for
benefits to the Compensation Committee for review. The Compensation Committee
in conjunction with the Board of Directors shall determine the disposition of
the disputed claim.
(e) If the claim is denied, either wholly or partially, notice of the
decision shall be mailed to the claimant within 90 days after the receipt of the
claim by the claims administrator.
(f) The claims administrator shall provide a written notice to any
claimant who is denied a claim for benefits under this Agreement. The notice
shall set forth the following information:
(i) the specific reasons for denial;
(ii) the specific reference to pertinent provisions of
the Agreement on which the denial is based;
(iii) a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary; and
(iv) appropriate information and an explanation of the
claims procedure under this Agreement to permit the claimant to submit his claim
for review.
All of this information shall be set forth in the notice in
a manner calculated to be understood by the claimant.
(g) The claims procedure under this Agreement shall allow the claimant
a reasonable opportunity to appeal a denied claim and to get a full and fair
review of that decision from the claims administrator. The claimant shall
exercise his right of appeal by submitting a written request for a review of the
denied claim to the claims administrator.
This written request for review must be submitted to the claims
administrator within sixty days after receipt by the claimant of the written
notice of denial. The claimant shall have the following rights under this
appeal procedure:
(i) to request a review upon written application to the
claims administrator;
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(ii) to review pertinent documents with regard to this
Agreement;
(iii) to submit issues and comments in writing;
(iv) to request an extension of time to make a written
submission of issues and comments; and
(v) to request that a hearing be held to consider
claimant's appeal.
(h) The claims administrator shall notify the claimant in writing of
the decision on review of the denied claim within 60 days after the receipt of
the request for review if no hearing was held, or within 120 days after the
receipt of the request for review, if an extension of time is necessary in order
to hold a hearing. If an extension of time is necessary in order to hold a
hearing, the claims administrator shall give the claimant written notice of the
extension of time and of the hearing. This notice shall be given prior to any
extension. The written notice of extension shall indicate that an extension of
time will occur in order to hold a hearing on the claimant's appeal.
The notice shall also specify the place, date, and time of that
hearing and the claimant's opportunity to participate in the hearing. It may
also include any other information the claims administrator believes may be
important or useful to the claimant in connection with the appeal.
(i) The decision to hold a hearing to consider the claimant's appeal
of the denied claim shall be within the sole discretion of the claims
administrator, whether or not the claimant requests such a hearing.
(j) The written decision on review required by Paragraph (h) above
shall contain the following information:
(i) the decisions;
(ii) the reasons for the decisions; and
(iii) specific references to the provisions of the
Agreement on which the decisions are based.
All of this information shall be written in a manner
calculated to be understood by the claimant.
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(k) The claims administrator shall be entitled to retain and rely on
the advice of experts (including without limitation attorneys and accountants
retained by the Company) in taking or refraining from taking any action or
making any decision pursuant to this Section 9. All fees and expenses of such
experts shall be paid by the Company.
10. Nature of Company's Obligation.
------------------------------
The Company's obligation under this Agreement shall be an unfunded and
unsecured promise to pay. Any assets which the Company may acquire to help
support its financial liabilities are and remain general assets of the Company
subject to the claims of its creditors. The Company does not give, nor does
this Agreement create nor the Employee receive, any beneficial ownership
interest in any asset of the Company. The Employee understands and agrees that
his participation in the acquisition of any general asset that the Company may
acquire or use to help support its financial obligations under this Agreement
shall not constitute a representation to the Employee, his designated
beneficiary, or any person claiming through the Employee that any of them has a
special or beneficial interest in such general asset.
11. No Employment Rights.
--------------------
This Agreement shall not be deemed to constitute a contract of
employment between the Company and Employee. Nothing contained in this
Agreement shall be deemed to give the Employee the right to be retained in the
employ of the Company or to interfere with the right of the Company to discharge
the Employee, nor shall it be determined to give the Company the right to
require the Employee to remain in its employ, nor shall it interfere with
Employee's right to terminate his employment.
12. Independence of Benefits.
------------------------
The benefits payable under this Agreement shall be independent of, and
in addition to, any other benefits or compensation, whether by salary, or bonus
or otherwise, payable under any other employment agreements that now or may in
the future exist between the Company and the Employee. This Agreement between
the Company and the Employee does not involve a reduction in salary or foregoing
of an increase in the future salary by the Employee. This Agreement shall not
affect or reduce the existing and future compensation and other benefits of the
Employee.
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13. Assignability.
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Except insofar as this provision may be contrary to applicable law, no
sale, transfer, alienation, assignment, pledge, collateralization, or attachment
of any benefits under this Agreement shall be valid or recognized by the
Company.
14. Payment Due Incompetents, Minors, Etc.
-------------------------------------
If it shall be found that any person to whom a payment is due under
this Agreement is unable to care for his affairs because of physical or mental
disability, or that such person is a minor, the Company shall have the authority
to cause the payments becoming due to such person to be made to the spouse,
brother, sister, or other individual with whom the person to whom the payment is
due is living, or any other individual deemed by the Company to have incurred
expense for such person otherwise entitled to payment (unless prior claim shall
have been made by a duly qualified guardian or other legal representative),
without responsibility of the Company to see the application of such payments.
Payments made pursuant to such power shall operate as a discharge of the
obligation of the Company under this Agreement to the extent of such payments.
15. Employee Waiver.
---------------
The Employee acknowledges and agrees that if the Agreement and the
benefits described in the Agreement constitute an employee benefit plan or part
of an employee benefit plan for purposes of Title I of the Employee Retirement
Income Security Act, as amended ("ERISA"), (a) such plan is an unfunded plan,
(b) the Employee belongs to a select group of management or highly compensated
employees, and, therefore, (c) such plan is exempt from the participation,
vesting, benefit accrual, joint and survivor and preretirement survivor annuity,
minimum funding, fiduciary responsibility, and other requirements of Title I of
ERISA. The Employee further agrees that, should the Agreement and the benefits
described in the Agreement be construed as a funded plan or part of a funded
plan for purposes of Title I of ERISA, the Employee irrevocably waives on behalf
of himself and any spouse to whom he may now or in the future be married, any
rights and claims the Employee or his spouse or both of them may have now or in
the future under Title I of ERISA with respect to such plan. The Employee
acknowledges that he has had sufficient opportunity to review this waiver with
counsel.
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16. Designation of Beneficiary.
--------------------------
The Employee may designate a beneficiary to receive any amounts due
under Sections 2(a), 3(c), or 6(d) of this Agreement after his death. A
designation of a beneficiary shall be made in writing, signed by the Employee,
and delivered to the Company. If the Employee is married and elects to
designate someone other than his spouse as beneficiary, the spouse's written
consent shall be required. If the Employee has not designated a beneficiary,
payment of such amounts shall be made to the Employee's surviving spouse or, if
there be none, to his estate. This Section 16 shall not supersede any
designation of beneficiary made by the Employee pursuant to or provided for
under any other plan or program of the Company.
17. Amendment.
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During the lifetime of the Employee, this Agreement may be amended or
terminated at any time, in whole or in part, by a written agreement of the
parties; provided, however, that this Agreement may not be amended in a manner
that would materially increase the cost to the Company without the approval of
the Board of Directors.
18. Plan Administrator.
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The plan administrator shall be the Compensation Committee of the
Board of Directors of the Company. The plan administrator shall administer this
Agreement, construe its terms, and make all determinations necessary under this
Agreement and shall have complete discretion in doing so.
19. Requirements and Benefits if Executive Is Employee of Subsidiary.
----------------------------------------------------------------
If the Employee is an employee of any subsidiary of the Company, he
shall be entitled to all of the rights and benefits of this Agreement as though
he were an employee of the Company, and the term "Company" as used in this
Agreement shall be construed to include the subsidiary by which the Employee is
employed. The Company guarantees the performance of its subsidiary under this
Agreement.
20. Notices.
-------
All notices, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall
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be deemed duly given upon their delivery or mailing, as the case may be, if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid:
(a) If to the Company, to:
American Precision Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman, Compensation Committee
(b) If to the claims administrator, to:
American Precision Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
(c) If to the Employee or claimant, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or to such other address as any of the foregoing shall have specified by notice
given in said manner to each of the others.
21. Miscellaneous.
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This Agreement constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement. This Agreement shall be
governed by the laws of the State of New York, except to the extent Federal law
supersedes. This Agreement is solely between the Company and the Employee.
However, it shall be binding upon the designated recipients, beneficiaries,
heirs, executors, and administrators of the Employee and upon the successors and
assigns of the Company. Headings in this Agreement are for reference purposes
only and shall not be deemed to have any substantive effect.
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IN WITNESS WHEREOF, the Employee has executed this Agreement, and the
Company, pursuant to the authorization of its Board of Directors, has caused
this Agreement to be executed, as of the day and year first above written.
AMERICAN PRECISION INDUSTRIES INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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SCHEDULE A
Effective as of October 15, 1999
I. Normal Retirement Benefit
-------------------------
The Normal Retirement Benefit is an amount equal to three times the
Employee's current annual base salary.
II. After-Tax Rate
--------------
The After-Tax Rate is the percentage that is the remainder after the
subtraction from (i) 100 percent of (ii) the effective marginal tax rate
applicable to the Employee on the date as of which a calculation is being
made. The Company shall determine the effective marginal tax rate
applicable to the Employee as of the calculation date, taking into account
federal, state, and local income tax rates; the hospital insurance tax rate
under the Federal Insurance Contribution Act; the deduction (for income tax
purposes) for state and local income taxes; and no income other than income
attributable to the Company. An amount shall be converted to an after-tax
amount by multiplying it by the After-Tax Rate in effect for the
calculation date.
III. Applicable Annual Rate
----------------------
The Applicable Annual Rate is the annual rate of interest determined for a
given calendar year as follows: For each calendar year, the Company shall
obtain quotes from the Guardian Life Insurance Company and two other A+
rated life insurance companies on the single premium that would be required
in January of that year to purchase an immediate annuity policy paying a
fixed monthly benefit for a term certain of 180 months. The premiums
quoted shall be translated into discount rates. The highest of the three
discount rates shall be the Applicable Annual Rate in effect for
calculations made as of any date during the given calendar year.