Attached files
Exhibit
10.3
OFFICERS RETIREMENT
AGREEMENT
THIS AGREEMENT made and entered into
this ____ day of ____________, _____, by and between PATRICK INDUSTRIES, INC.,
an Indiana corporation, hereinafter referred to as “COMPANY,” and
_____________________, hereinafter referred to as “EMPLOYEE,”
W I T N E
S S E T H:
WHEREAS, Employee has been a key
executive employee of Company for some period of time and is currently employed
pursuant to an Employment Agreement dated _______________,_____;
and
WHEREAS, it is the intention of the
parties that Employee’s employment by Company shall continue at the will of the
parties for an indefinite time into the future; and
WHEREAS, it is the desire of the
Company to provide a certain amount of security or retirement income to the
Employee and his/her family at retirement or death and/or in the event of
Employee’s total disability during the term of employment. This
Agreement is intended to be an unfunded retirement plan.
NOW, THEREFORE, it is mutually covenant
and agreed by the parties as follows:
1. Retirement. In
the event Employee shall continue in the regular employment of the Company on a
full time basis until retirement, Company will pay to the Employee upon
retirement from the Company at age 65, an amount annually for Ten (10) years
equal to forty (40%) percent of the highest annual base salary earned by
employee within Three (3) years prior to retirement. Such payments to
be made in one hundred twenty (120) equal consecutive monthly installments, each
will be one-twelfth (1/12th) of forty (40%) percent of said highest annual base
salary earned within three years prior to retirement. It is agreed by
the parties that Employee’s normal retirement age is sixty-five (65)
years. Nothing herein contained, however, shall prevent the Employee
from retiring at any time hereinafter upon the attainment of age sixty (60)
years. In the event the Employee shall retire at any time prior to
age sixty-five (65) years and after reaching the age of sixty (60) years, the
retirement benefits otherwise payable
hereunder
shall be reduced by five (5%) percent per year for each year or portion thereof
prior to the Employee’s attainment of age sixty-five (65) years. The
date of an employee’s termination of employment for whatever reason, shall be
deemed to be his date of retirement, provided that if the terminated employee
has not reached the age of 60 but is vested, he shall be deemed to have retired
at age 60. Notwithstanding anything to the contrary herein, the
retirement benefits shall be reduced by the amount of disability benefits paid
after the initial six (6) months of disability.
2. Disability. In
the event Employee shall become totally disabled during the term of his
employment with Company, the Company shall continue to pay Employee his regular
base salary for a term of three (3) months from and after the date of
commencement of said total disability. Thereafter and in the event
said total disability continues, Company shall pay Employee one-half (1/2) of
his then base salary for the next succeeding three (3)
months. Thereafter and in the event Employee’s total disability shall
continue, Company shall pay Employee monthly disability benefits equal to
Employee’s monthly retirement benefits for retirement at the normal retirement
age, which disability benefits shall continue to be paid until Employee dies,
attains age sixty-five (65) years, said disability terminates, or Employee has
received all One Hundred Twenty (120) payments, whichever shall occur first in
time. Notwithstanding anything in this Agreement to the
contrary, the monthly disability benefits due Employee under this Agreement
shall be reduced by the amount of any disability insurance benefits Employee may
receive, provided such insurance was purchased by the Company.
Payment of disability benefits by
Company to or for the benefit of Employee shall not affect Company’s obligation
to pay retirement or death benefits under the terms hereof.
For the purposes hereof, total
disability for the first six (6) months shall mean the inability of the Employee
because of bodily injury or disease to perform his regularly assigned duties to
the Company. Thereafter, such disability shall mean the inability because of
bodily injury or disease to engage in a similar executive position for which the
Employee is reasonably fitted by reason of education, training, or
experience. For the purposes hereof, disability shall include without
implied limitation, the entire loss
of
speech, hearing, sight of both eyes, the use of both hands or feet, or of one
hand and one foot. If requested to do so, Employee agrees to submit
to examination by a qualified physician of the Company’s choice from time to
time, and the determination of total disability as made by said physician shall
be conclusive and binding upon the parties hereto.
In the event said total disability of
Employee terminates after six (6) months from the commencement thereof, Company
may re-employ Employee on such terms and conditions as the parties shall then
agree, provided, however, that Company shall have no obligation to re-employ
Employee.
3. Death. In
the event Employee dies prior to retirement or after the commencement of any
total disability of Employee and prior to retirement, Company shall pay to
Employee’s designated beneficiaries in the same number of installments as would
be payable to the Employee, a sum equal to Employee’s retirement benefits which
would otherwise have been available in the event of retirement upon the
attainment of age sixty-five (65) years.
In the event Employee dies after the
commencement of payment of retirement benefits, Company shall pay to the
Employee’s designated beneficiary in monthly installments as would be payable to
the Employee, a sum equal to Employee’s remaining retirement
benefits.
4. Insurance. Company
may obtain and maintain disability insurance and/or life insurance on the life
of Employee. At all times, the Company shall be the owner and
beneficiary of such insurance policies and be responsible for the payment of the
premiums therefor. Company shall be entitled to receive as its sole
property all monies payable to the beneficiary of said policies under the terms
thereof, and to exercise all rights, powers, and privileges of the owner of said
policies. Nothing herein contained, however, shall require Company to
obtain or maintain any policy or policies of insurance on employee during the
term of his employment, it being the intent and purpose hereof that Company may
or may not maintain such insurance, in its sole discretion.
Further, notwithstanding anything to
the contrary contained herein, all obligations of the Company hereunder shall be
deemed for all purposes to be unfunded
general
obligations of the Company and all amounts payable pursuant to the terms of this
Agreement shall be paid from the general assets of the Company.
5. Noncompete. In
consideration of this Agreement and as a condition of Company’s obligations
hereunder, during the time when Employee is receiving benefits hereunder from
the Company, Employee agrees that he shall not, directly or indirectly, render
services to, become employed by, associated with, participate or engage in, or
otherwise become connected with (other than solely as a less than five percent
(5%) investor through purchases of securities in a publicly traded company) any
person, partnership, corporation, or other entity engaged in a business
competitive to that of the Company and its subsidiaries in any state where the
Company has customers during the term of Employee’s employment with the Company
and will not solicit any customer of the Company on behalf of any business
competitive to the Company.
For the purpose of this agreement, a
business shall be deemed to be competitive to that of the Company and its
subsidiaries if such business is primarily engaged in the manufacture,
distribution, and sale of materials for use in the manufactured housing,
recreational vehicle, furniture, or aluminum extrusions industries.
Further, in consideration of this
agreement and as a condition to the Company’s obligations hereunder, Employee
agrees that he will not, without prior written authorization of the Board of
Directors of Company, at any time use or disclose to any person or entity not
legally entitled thereto any confidential information relating to the business
of the Company and its subsidiaries obtained by him while in the Company’s
employ and, further, after the Employee leaves the employ of the Company, he
shall not take with him, without the President’s prior written consent, any
documents or reproductions thereof, data, calculation or copies thereof, or any
nonpublic information of any kind pertaining to the Company and its
subsidiaries.
It is agreed by the parties that the
time, territory, product and business activities limitations, and definitions
contained herein are reasonable in all respects. In the event
Employee shall violate his agreement of noncompetition or nondisclosure, or
both, Company shall be relieved from the payment of any further benefits which
would otherwise be payable to the Employee under the terms
hereof.
It is the desire and intent of the
parties that the foregoing provisions of this Section 5 shall be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Section 5 shall be adjudicated to be invalid or
unenforceable, such provision shall be deemed amended to limit enforcement to
the extent required by law and/or public policy and the provision shall be
enforced as amended, such amendment to apply only with respect to the operation
of such provision of this Section 5 in the particular jurisdiction in which such
adjudication is made.
6. Employee at
Will. Finally, the parties agree that the execution by the
Company and the Employee of this agreement shall not constitute a contract for
the continued employment of the Employee for any duration
whatever. Company specifically reserves the right to terminate the
Employee’s employment, with or without cause, at any time hereafter; provided,
however, that Company shall have no right to arbitrarily discharge Employee,
without cause as defined in the Employment Agreement between the parties, at any
time when it would appear that total disability of the Employee was
imminent.
7. Severability. If
any court determines that any of the agreements or restrictions included in this
deferred compensation agreement, or any part thereof, is unenforceable for any
reason, such court shall have the power to delete or amend such provisions, to
the extent and only to the extent necessary to make them enforceable, and such
provisions, as amended, shall then be enforceable.
8. Beneficiary. Employee
from time to time hereafter may designate in writing a beneficiary or
beneficiaries to receive the retirement or death benefits payable to Employee in
the event of Employee’s death during the benefit payment terms and further
designate the manner in which said remaining benefits shall be payable by
Company. In the absence of such beneficiary designation, Company
shall pay the benefits hereunder to the personal representative of the
Employee’s estate. In the absence of designation of the manner of
payment by the Employee, the Company shall pay said death benefits in regular
monthly installments as if the Employee were retired and
living.
9. No
Alienation. Neither Employee nor his beneficiaries shall have
the right to encumber, commute, borrow against, dispose of, or assign the right
to receive payments under this agreement. No right or benefit
hereunder shall in any manner be liable for or subject to the debts, contracts,
liabilities, or torts of the person entitled to such benefit. If any
participant or beneficiary hereunder shall become bankrupt or attempt to
anticipate, alienate, sell, assign, pledge, encumber, or charge any right to
benefit hereunder or if any other person or entity shall attempt to execute on
any benefit hereunder, then such right or benefit, in the discretion of the
administrative committee, appointed by the Company’s Board of Directors, shall
cease and terminate, and in such event, the Company may hold or apply the same
or any part thereof for the benefit of the Employee, his beneficiary, Employee’s
spouse, children or other dependents, or any of them, in such manner and in such
portion as the administrative committee may deem proper.
10. Vesting. Notwithstanding
anything to the contrary contained herein, the benefits hereunder shall vest in
the Employee at such time as the Employee’s age and completed years of service
equals eighty-five (85), or employee reaches thirty (30) years of continuous
employment with the Company, or Employee reaches the age of sixty (60) years,
whichever occurs first. However, payments shall not be paid until the
remaining terms of this agreement are met after such vesting.
Employee shall also be vested upon a
change in control of the Company. “Change in Control”
means:
a. any
“person” (as defined in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act)
directly or indirectly, of securities of the Company representing thirty-three
percent (33%) or more of the combined voting power of the Company’s then
outstanding securities; or
b. during
any period of two (2) consecutive years (not including any period prior to the
date of this agreement) there shall cease to be a majority of the Board
comprised of continuing directors; or
c. the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation or entity, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least eighty
percent (80%) of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such merger or
consolidation, or, the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets.
Notwithstanding anything to the
contrary contained herein, in the event of the termination of Employee’s
employment prior to the vesting of benefits hereunder, other than by reason
of disability or death, the parties further agree that no benefits
shall be payable to the Employee or any beneficiary of the Employee pursuant to
the terms of this Agreement.
11. Applicable
Law. This agreement is executed by authorized representatives
of the Company and by the Employee as of the day and month and year first above
written and shall be binding upon and inure to the benefit of the respective
parties, their heirs, successors, personal representatives, and
assigns. This agreement shall for all purposes be construed under the
laws of the State of Indiana.
12. Arbitration. In
the event of a dispute between the parties with respect to the validity, intent,
interpretation, performance, or enforcement of any of the terms contained in
this Agreement or any claim arising out of or in connection with this Agreement,
which the parties, using their best efforts, are unable to resolve within ninety
(90) business days, the matter shall be submitted for final resolution to an
Arbitration Panel consisting of three arbitrators selected as follows: each
party shall select one arbitrator; and the two arbitrators shall select a third
arbitrator and no arbitrator may be affiliated with any of the parties
hereto. In the event either of the parties shall have failed to
select an arbitrator within ten days after receipt of written notice from the
other party that it has selected its arbitrator, such arbitrator shall be
selected by the American
Arbitration
Association. The arbitration procedure set forth in this section
shall be the sole and exclusive means of settling or resolving any dispute
arising under this Agreement. The arbitration shall be conducted in
accordance with the American Arbitration Association Rules then in effect, as
modified herein. The arbitration herein shall be conducted in
Elkhart, Indiana. The award of the arbitrators shall be final and
binding on the parties and may be presented by any of the parties for
enforcement in any court of competent jurisdiction and the parties hereby
consent to the jurisdiction of such court solely for purposes of enforcement of
this arbitration agreement and any award rendered hereunder. In any
such enforcement action, irrespective of where it is brought, none of the
parties will seek to invalidate or modify the decision of the arbitrators or
otherwise to invalidate or circumvent the procedures set forth in this Section
12 as the sole and exclusive means of settling or resolving such dispute,
including by appeal to any court which would otherwise have jurisdiction in the
matter. The fees of the arbitrators and the other costs of such
arbitration shall be borne by the parties in such proportions as shall be
specified in the arbitration award.
Dated at Elkhart, Indiana, effective
the day, month and year first above written.
PATRICK INDUSTRIES, INC.
By: ______________________________________
Printed: __________________________________
Title: ____________________________________
EMPLOYEE
By: ______________________________________
Printed: __________________________________