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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
BETWEEN
IDEX CORPORATION
AND
JERRY N. DERCK
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
1800 ONE M & T PLAZA
BUFFALO, N.Y. 14203
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 27th day of September, 1994, between
IDEX CORPORATION, a Delaware corporation with its executive offices at 630
Dundee Road, Suite 400, Northbrook, Illinois 60062 ("IDEX"), and JERRY N.
DERCK, an individual residing at 408 Burdick Street, Libertyville, Illinois
60048 (the "Executive").
IDEX and the Executive agree as follows:
1. INTRODUCTORY STATEMENT. The Executive is willing to execute this
Agreement with respect to his employment upon the terms and conditions set
forth in this Agreement.
2. AGREEMENT OF EMPLOYMENT. IDEX agrees to, and hereby does, employ
the Executive, and the Executive agrees to, and hereby does accept, employment
by IDEX, or one of its subsidiaries, as the case may be (hereafter in the
aggregate, the "Corporation"), as an executive of the Corporation, subject to
the provisions of the by-laws by the Corporation in respect of the duties and
responsibilities assigned from time to time by the Chief Executive Officer of
the Corporation and subject also at all times to the control of the Board of
Directors of the Corporation.
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The Corporation shall not require the Executive to perform services
hereunder away from the Chicago, Illinois area of such frequency and duration
as would necessitate, in the reasonable judgment of the Executive, the
Executive moving his residence from the Chicago, Illinois area. Following an
Acquisition (as hereinafter defined), the Corporation shall not, in the
reasonable judgment of the Executive, (a) significantly reduce the scope of
the duties of the Executive hereunder or (b) significantly reduce the total
potential compensation of the Executive hereunder. If the Executive determines
in accordance with the preceding sentences that (a) the services required by
the Corporation necessitate that the Executive move his residence from the
Chicago, Illinois area, (b) the duties of the Executive hereunder have been
significantly reduced or (c) the total potential compensation of the Executive
hereunder has been significantly reduced, the Executive, in his sole
discretion, may deem that the Corporation has terminated his services and shall
so notify the Corporation in writing, in which case the Corporation shall be
deemed to have terminated the services of the Executive for all purposes of
this Agreement as of the date specified by the Executive in his notice to the
Corporation.
3. EXECUTIVE'S OBLIGATIONS: VACATIONS, AUTOMOBILE. During the period
of his full-time service under this Agreement, the Executive shall devote
substantially all of his time and energies during business hours to the
supervision and conduct,
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faithfully and to the best of his ability, of the business and affairs of the
Corporation, and to the furtherance of its interests, and shall not accept
other gainful employment except with the prior consent of the Chief Executive
Officer of the Corporation. With the approval of the Chief Executive Officer
of the Corporation, however, the Executive may become a director, trustee or
other fiduciary of other corporations, trusts or entities. The Executive may
take four weeks vacation each year with pay. The Corporation shall furnish and
maintain an automobile for the use of the Executive consistent with the policy
of the Corporation in effect at any time.
4. ANNUAL SALARY. The Corporation shall pay to the Executive for his
services under this Agreement a salary at the rate of $142,000 per year, in
equal monthly installments, during the period of his full-time service
hereunder; provided, however, that the Corporation shall in good faith review
the salary of the Executive, on an annual basis, with a view to consideration
of appropriate increases in such salary. If the Executive dies during the
period of his full-time service hereunder, service for any part of the month of
his death shall be considered service for the entire month.
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5. PERIOD OF SERVICE AND BENEFITS.
5(a). PERIOD OF FULL-TIME SERVICE. The period of full-time
service of the Executive under this Agreement shall continue to the third
anniversary of the Effective Date, and for successive 12 month periods
thereafter; provided, however, that the Corporation may terminate at any time
the full-time service of the Executive hereunder by delivering written notice
of termination to the Executive, or the Executive may resign and terminate his
full-time service hereunder at any time after the third anniversary of the
Effective Date, by delivering written notice of his intention to resign to the
Corporation at least 3 months prior to the effective date of such resignation.
In the event of termination of the Executive by the Corporation, the
Executive shall be entitled to receive his full annual salary and fringe
benefits in effect on the date of receipt of the notice of termination for a
continuing period of 24 months beginning with that month next following the
month during which he ceases to be actively employed. In the event of the
Executive's death, the balance of the continuing salary payments shall be made
to his wife, if surviving, or if not, to his estate in addition to any and all
other benefits payable under this Agreement upon his death.
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In the event of resignation by the Executive as permitted by this
Agreement, the Executive shall be entitled to receive his full annual salary
and fringe benefits in effect on the date of receipt of the notice of
resignation for a continuing period to the effective date of his resignation
but not longer than three months. Continuing fringe benefits under this
Section 5(a) shall be reduced to the extent of any fringe benefits provided by
and available to the Executive from any subsequent employer but shall not be
limited by the terms of any such fringe benefit of a subsequent employer.
In the event of termination of the Executive by the Corporation or the
Executive's death or disability, the Executive or his estate shall receive a
cash bonus for the entire fiscal year in which such termination or death occurs
or disability commences. Such bonus shall be calculated in accordance with the
management incentive compensation program of the Corporation in effect from
time to time and shall in no event be less than the full target amount for the
Executive for such fiscal year. The bonus shall be payable in one lump sum in
accordance with and at the time prescribed by the Corporation's policy for
payment of annual bonuses to its executive employees for the year in which the
Executive's termination or death occurs or his disability commences. If no
policy of the Corporation exists with regard to calculation and payment of
bonuses, the bonus shall be calculated
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and paid in accordance with the policy of Houdaille Industries, Inc. in effect
as of January 22, 1988.
In addition, in the event of either termination (including, without
limitation, because of the Executive's death or disability) of employment or
resignation, the Executive shall receive payment for accrued but unused
vacation, which payment shall be equitably prorated based on the period of
active employment for that portion of the fiscal year in which the termination
or resignation becomes effective, death occurs, or disability commences, plus
payment for accrued but unused vacation for the prior fiscal year. Payment for
accrued but unused vacation shall be payable in one lump sum on the effective
date of termination or resignation, the date of death (or as soon thereafter as
practicable) or the date disability commences.
In the event of termination of the Executive by the Corporation within
24 months following an "Acquisition" of the Corporation (as hereinafter
defined), the benefits to be provided to the Executive and his beneficiaries
upon such termination, regardless of the continued effectiveness of this
Agreement or of the provisions of this Section 5(a), shall be in an amount and
character not less generous than the benefits payable upon a termination of the
Executive by the Corporation as set forth in this Section 5(a). An
"Acquisition" means (I) any transaction or series of transactions which within
a 12-month period constitute
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a change of management or control where (i) at least 51 percent of the then
outstanding common shares of the Corporation are (for cash, property
(including, without limitation, stock in any corporation), or indebtedness, or
any combination thereof), redeemed by the Corporation or purchased by any
person(s), firm(s) or entities), or exchanged for shares in any other
corporation whether or not affiliated with the Corporation, or any combination
of such redemption, purchase or exchange, or (ii) at least 51 percent of the
Corporation's assets are purchased by any person(s), firm(s) or entities)
whether or not affiliated with the Corporation for cash, property (including,
without limitation, stock in any corporation) or indebtedness or any
combination thereof, or (iii) the Corporation is merged or consolidated with
another corporation regardless of whether the Corporation is the survivor, or
(II) any substantial equivalent of any such redemption, purchase, exchange,
change, transaction or series of transactions, merger or consolidation,
constituting such change of management or control. For purposes of this
paragraph, the term "control" shall have the meaning ascribed thereto under the
Securities Exchange Act of 1934, as amended, and the regulations thereunder,
and the term "management" shall mean the chief executive officer of the
Corporation. For purposes of clause (I)(ii) above or as appropriate for
purposes of clause (II) above, the Corporation shall be deemed to include on a
consolidated basis all subsidiaries and other affiliated
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corporations or other entities with the same effect as if they were divisions.
The benefits provided for under this section shall be in lieu of, and
not in addition to, any and all benefits to which the Executive and his
beneficiaries may be entitled under any bonus or severance program or policy
adopted by the Corporation from time to time unless otherwise expressly stated
therein.
5(b). DEATH BENEFIT. If the Executive dies during the period of
his full-time service hereunder, his wife, if surviving, or if not, his estate
shall be entitled to receive his full annual salary in effect on the date of
his death for a continuing period of nine months commencing on the first day of
the month immediately following the date of his death.
5(c)(1). RETIREMENT COMPENSATION AND OBLIGATIONS. Upon the retirement
or resignation of the Executive or upon his termination from full-time service
with the Corporation, in either case pursuant to the provisions of this
Section 5 hereof, the full-time service obligations of the Executive and the
Corporation to each other under Sections 2, 3 and 4 hereof shall cease, and
the Executive shall be entitled to receive benefits and compensation as
specified in this Section 5 hereof.
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5(c)(2). GUARANTEE OF PENSION BENEFITS. In addition to the
compensation otherwise provided herein, the Executive and his beneficiaries
shall be entitled to receive the retirement and death benefits they would
receive at the times and under such optional arrangements as the Executive is
entitled to under the terms of any retirement or pension plan adopted and
implemented by the Corporation for its employees in effect at the date of the
Executive's retirement, resignation or termination (for whatever reason) from
full-time service with the Corporation (the "Plan") (such Plan shall include a
lump sum option) pursuant to the Plan provisions as in effect at the point in
time during the Executive's employment at which the Plan would provide the
greatest benefits for the Executive and his beneficiaries and, in addition, the
greatest latitude in choice of options (including, but not limited to, a lump
sum option), but in any event computed without reference to (i) any
restrictions in the Plan upon payments to the Executive, as described in
Section 1.401(a)(4)-5(b) of the Treasury Regulations; (ii) any restrictions in
the Plan upon the maximum contributions to the Plan or upon the maximum
benefits payable under the Plan, as the case may be, pursuant to Section 415 of
the Internal Revenue Code of 1986, as in effect at such point in time (the
"Code"); (iii) any limitations on the amount of the Executive's compensation
that may be taken into account under the Plan pursuant to Section 401(a)(17) of
the Code or any successor section; (iv) the limitations on compensation that
would exclude any income
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attributable to the exercise of the nonqualified stock options granted in
replacement of Equity Appreciation Rights granted under the First Restatement
of the Amended and Restated 1988 Equity Appreciation Rights Plan; (v) for
purposes of determining eligibility for a lump sum distribution, any condition
under the Plan considered necessary to receive a lump sum distribution, such as
the submission of medical evidence of reasonable health of the Participant or
the meeting of a specified age or service requirement (in other words the lump
sum distribution shall be an election solely in the discretion of the
Executive); (vi) any forfeiture resulting from an insufficient number of Years
of Vesting Service to be entitled to a fully nonforfeitable benefit; or (vii)
any other restriction on the Executive's benefits as determined under the Plan
pursuant to the Code, to the Employee Retirement Income Security Act of 1974,
as in effect at such point in time ("ERISA") or to any other law affecting the
determination of such benefits. However, except as specifically described
otherwise in the preceding sentence, all calculations pursuant to this Section
5(c)(2) of benefits shall be made on the basis of the actual years of service
to the Corporation, including any Affiliated Corporation and Company as defined
under the Plan, and actual compensation of the Executive taken into account
under the applicable Plan provisions. To the extent that the benefits to which
the Executive or his beneficiaries are entitled under this Section 5(c)(2) are
not paid from the Trust under the Plan or from the IDEX Corporation Supplemental
Executive Retirement Plan, the
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Corporation shall pay such benefits directly from its general assets.
If payments are being made, pursuant to this Section 5(c)(2), in the
form of an annuity or other periodic form of distribution, and the portion of
the total amount to be paid from the Trust under the Plan shall thereafter be
reduced after the date such payments have been determined pursuant to the
preceding paragraph, by virtue of the operation of restrictions in the Plan
upon payments to the Executive, as described in Section 1.401(a)(4)-5(b) of the
Treasury Regulations, or by virtue of the termination of the Plan (including
the operation of Section 4045 of ERISA or any successor section) or for any
other reason other than the operation of the provisions of the optional form
selected under the Plan, the Corporation shall increase, in an amount equal to
any such reduction, the amount of the benefit under this Section 5(c)(2) which
is to be paid directly from its general assets, and such increase shall be
prorated over the remaining payments or used to recalculate the annuity
payments, as the case may be.
If payments are being made or have been made in full, pursuant to this
Section 5(c)(2), but the Executive or any of his beneficiaries is required to
make a payment to the Trustee under the Plan (whether in the form of a loss of
collateral, interest on such collateral or otherwise) as the result of the
application
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of the restrictions in the Plan upon payments to the Executive, as described in
Section 1.401(a)(4)-5(b) of the Treasury Regulations, or by virtue of the
termination of the Plan (including the operation of Section 4045 of ERISA or
any successor section) or for any other reason, the Corporation shall reimburse
the Executive or his beneficiaries, as the case may be, directly from its
general assets, for each such payment to the Trustee, and if the Executive or
any of his beneficiaries does not receive a deduction for federal, state and/or
local income tax purposes for such a payment and/or if such payment would
result in the imposition of any penalty tax because of such repayment, then the
amount of such reimbursement shall be increased by an amount such that after
payment by the Executive or his beneficiaries of all taxes, including, without
limitation, any interest or penalties imposed with respect to such
reimbursement, the Executive or his beneficiaries retain an amount from the
Corporation approximately equal to the amount repaid to the Trustee.
In the event (I) the Executive requests a lump sum distribution from
the Trustee or Committee under the Plan and is denied the request, regardless
of the reason for the denial, or (II) (i) if the Plan is amended to eliminate
the lump sum distribution option on future benefit accruals or (ii) the
Executive is not otherwise entitled to a lump sum distribution under the Plan
terms and, in the case of (i) or (ii), the
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Executive states in writing to the Corporation at any time prior to the
Executive or his beneficiaries receiving a benefit under the Plan that he
otherwise would have requested the lump sum distribution option, the
Corporation shall pay the Executive, or his beneficiaries, as the case may be,
in cash in a single lump sum benefit, an amount equal to the benefit
hereinbefore determined less any amount received by the Executive or his
beneficiaries from the Plan directly or indirectly in a single payment,
regardless of the form of payment in which the benefit is being paid or is to
be paid under the Plan. In the case of a benefit provided under this
paragraph, the Corporation shall pay the Executive or his beneficiaries an
additional amount in cash in a single lump sum payment such that after payment
by the Executive or his beneficiaries of all federal, state, and/or local
income taxes (including, without limitation, any interest or penalties imposed
with respect to such taxes) imposed upon such single lump sum payment, the
Executive or his beneficiaries retain an amount that would have been retained
by him or them (without regard to any limitations as described in the first
paragraph of this Section 5(c)(2)) had he or they directly rolled the amount
from the Plan into an individual retirement account. If the Executive or his
beneficiaries receive the single lump sum payment from the Corporation under
this paragraph, the Executive and his beneficiaries agree to waive and/or
return to the Corporation all benefits to him or them that he or they
subsequently receive from the Plan. Notwithstanding the
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preceding sentence, if the Executive or any of his beneficiaries does not
receive a deduction for federal, state and/or local income tax purposes for
such benefits and/or if such benefits would result in the imposition of any
penalty tax because of such repayment, then the amount of such waiver and/or
return to the Corporation shall be decreased by an amount such that after
payment by the Executive or his beneficiaries of all taxes, including, without
limitation, any interest or penalties imposed with respect to such waiver
and/or return, the Executive or his beneficiaries incur no net expense from
such benefits he or they subsequently receive from the Plan. For purposes of
this Section, beneficiaries means the beneficiaries as determined under the
Plan.
5(c)(3). MEDICAL BENEFITS. The Executive and/or his wife, as the
case may be, shall be entitled to prompt reimbursement for all medical, dental,
hospitalization, convalescent, nursing, extended care facilities and similar
health and welfare expenses incurred by the Executive (or by his wife in the
event of the Executive's death or disability) for the Executive or for the
benefit of his wife or other dependents. Such benefits shall continue at all
times while the Exective is employed by the Corporation, and thereafter for the
remainder of his life or the life of his wife, whichever shall be the longer
time, if (a) the Executive continues in the employ of the Corporation until the
commencement of his 6Oth year or (b) the
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Executive prior to the commencement of his 60th year dies or becomes disabled
while employed by the Corporation or (c) the executive is terminated at any
time following an Acquisition. The Corporation may, in its discretion, insure
such benefits; provided, however, that such benefits shall not be affected by
the existence or non-existence of any available insurance from any source,
shall not be limited by the terms of any such insurance or the failure of any
insurer to meet its obligations thereunder, shall not limit the Executive or
his beneficiaries in the choice of any physician, medical care facility or type
of medical expenses in any way, and, except as provided in the following
sentence, shall not be affected by the availability of any medical benefits
provided by and available to the Executive from any subsequent employer. If
the Executive leaves the service of the Corporation prior to attaining age 55
as the result of his termination by the Corporation at any time following an
Acquisition, such benefits shall be reduced until the Executive attains age 55
to the extent of any medical benefits provided by and available to the
Executive from any subsequent employer without cost to the Executive or subject
to full reimbursement of any such cost by the Corporation to the Executive but
shall not be limited by the terms of any such insurance or reimbursement. For
purposes of this Agreement, the term "medical expenses" shall include, but not
be limited to, prescription drugs, prosthetics, optical care (including
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corrective lenses) and travel and lodging associated with medical expenses.
5(d). CONFIDENTIALITY AGREEMENT. During the course of his
employment, the Executive has had and will have access to confidential
information relating to the lines of business of the Corporation, its trade
secrets, marketing techniques, technical and cost data, information concerning
customers and suppliers, information relating to product lines, and other
valuable and confidential information relating to the business operations of
the Corporation not generally available to the public (the "Confidential
Information"). The parties hereby acknowledge that any unauthorized disclosure
or misuse of the Confidential Information could cause irreparable damage to the
Corporation. The parties also agree that covenants by the Executive not to
make unauthorized use or disclosures of the Confidential Information are
essential to the growth and stability of the business of the Corporation.
Accordingly, the Executive agrees to the confidentiality covenants set forth in
this section.
The Executive agrees that, except as required by his duties with the
Corporation or as authorized by the Corporation in writing, he will not use or
disclose to anyone at any time, regardless of whether before or after the
Executive ceases to be employed by the Corporation, any of the Confidential
information
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obtained by him in the course of his employment with the Corporation.
The Executive agrees that since irreparable damage could result from
his breach of the covenants in this Section 5(d) of this Agreement, in
addition to any and all other remedies available to the Corporation, the
Corporation shall have the remedies of a restraining order, injunction or other
equitable relief to enforce the provisions thereof. The Employee consents to
jurisdiction in Lake County, Illinois on the date of the commencement of any
action for purposes of any claims under this Section 5(d). In addition, the
Executive agrees that the issues in any action brought under this section will
be limited to claims under this section, and all other claims or counterclaims
under other provisions of this Agreement will be excluded.
6. COMPENSATION UNDER THIS AGREEMENT NOT EXCLUSIVE. Except as
expressly stated to the contrary in this Agreement, the compensation and
benefits payable by the Corporation to the Executive under the provisions of
this Agreement shall be in addition to and separate and apart from such
additional compensation or incentives and such retirement, disability or other
benefits as the Executive may be entitled to under any present or future extra
compensation or bonus plan, stock option plan, share purchase agreement,
pension plan, disability insurance plan, medical insurance plan, life insurance
program, or other plan or
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arrangement of the Corporation established for its executives or employees, and
the provisions of this Agreement shall not affect any such compensation,
incentives or benefits. The Board of Directors of the Corporation, in its
discretion, may award the Executive such additional compensation, incentives or
benefits, pursuant to such plans or otherwise, as it may from time to time
determine.
7. TERMINATION OF THIS AGREEMENT. This Agreement shall terminate
when the Corporation has made the last payment provided for hereunder;
provided, however, that the obligations set forth under Section 5(d) of this
Agreement shall survive any such termination and shall remain in full force and
effect. Without the written consent of the Executive, the Corporation shall
have no right to terminate this Agreement prior thereto. In the event the
Executive, or his beneficiaries, as the case may be, and the Corporation shall
disagree as to their respective rights and obligations under this Agreement,
and the Executive or his beneficiaries are successful in establishing,
privately or otherwise, that his or their position is substantially correct, or
that the Corporation's position is substantially wrong or unreasonable, or in
the event that the disagreement is resolved by settlement, the Corporation
shall pay all costs and expenses, including counsel fees, which the Executive
or his beneficiaries may incur in connection therewith. The Corporation shall
not delay or reduce the amount of any payment provided for hereunder
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or setoff or counterclaim against any such amount for any reason whatever; it
is the intention of the Corporation and the Executive that the amounts payable
to the Executive or his beneficiaries hereunder shall continue to be paid in
all events in the manner and at the times herein provided. All payments made
by the Corporation hereunder shall be final and the Corporation shall not seek
to recover all or any part of any such payments for any reason whatsoever.
8. Additional payments by Corporation.
(a) Notwithstanding anything in this Agreement or any other agreement
to the contrary, in the event it shall be determined that any payment or
distribution by the Corporation or any affiliate (as defined under the
Securities Act of 1933, as amended, and the regulations thereunder) thereof or
any other person to or for the benefit of the Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement, pursuant to the Non-Qualified Stock Option Plan for Officers of the
Corporation now or hereafter in effect, or pursuant to any other agreement or
arrangement with the Corporation or any affiliate thereof now or hereafter in
effect (a "Payment"), would be subject to the excise tax imposed by Section
4999 of the Code, or any successor statute thereto, or any interest or
penalties with respect to such excise tax (such excise tax, together with any
such interest and penalties, are
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hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes (including,
without limitation, any interest or penalties imposed with respect to such
taxes and any Excise Tax) imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) The Executive and/or the Corporation shall notify each other in
writing as soon as practicable of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Corporation of the
Gross-Up Payment. Such notification shall state the nature of such claim and
the date on which such claim is requested to be paid. Neither the Executive
nor the Corporation shall pay such claim for taxes prior to the expiration of
the thirty-day period following the date on which the notice is given (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Executive or Corporation notifies the other party
in writing prior to the expiration of such period that it desires to contest
such claim, such other party shall take such action, in connection with
contesting such claim as the Executive or Corporation shall reasonably request
in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney selected by the
Executive or Corpo-
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ration and approved by the other party, provided, however, that the Corporation
shall bear and pay directly all costs and expenses (including additional
interest and penalties and counsel fees as submitted) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Furthermore, the Corporation's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
9. ASSURANCES ON LIQUIDATION. The Corporation agrees that until the
termination of this Agreement as above provided, it will not voluntarily
liquidate or dissolve, or enter into or be a party to any other transaction the
effect of which would be to materially reduce the net assets or operations of
the Corporation, without first making a written agreement with the Executive or
other beneficiary, satisfactory to and approved by him or such beneficiary in
writing within 30 days of receipt of a notice from the Corporation of such
proposed liquidation, dissolution or other transaction, in fulfillment of or in
lieu of its obligations to him or such beneficiary under this Agreement or any
other agreement, plan, policy or program of the
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Corporation or, in the absence of such agreement, paying him or such
beneficiary in a lump sum settlement of all such obligations prior to such
proposed liquidation, dissolution or other transaction. Notwithstanding
anything in the preceding sentence to the contrary, in the event that pursuant
to the preceding sentence the Corporation is obligated to pay to the Executive
or such beneficiary in a lump sum settlement all of the obligations of the
Corporation to the Executive or such beneficiary under this Agreement or any
other agreement, plan, policy or program of the Corporation, the Executive or,
in the event of his death or inability to act, his wife or, if not surviving,
his eldest surviving child, shall have the right, in his or her sole
discretion, to elect not to receive a lump sum settlement of the obligations of
the Corporation to the Executive or other beneficiary under Section 5(c)(3) of
this Agreement and, in lieu thereof, to receive a guaranty (including, without
limitation, a letter of credit), in form and substance satisfactory to the
Executive or other beneficiary, as the case may be, in his or her sole
discretion, of the payment of such obligations from any entity satisfactory to
the Executive or other beneficiary, as the case may be, in his or her sole
discretion. Any lump sum settlement shall be determined using the interest
rate that would be used (as of the date of payment) by the Pension Benefit
Guaranty Corporation for purposes of valuing a lump sum distribution upon a
plan termination on the January 1 of the calendar year in which the single sum
is paid and the mortality
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assumptions of the Unisex Pension 1984 Mortality Table. For purposes of this
Subsection, the Corporation shall be deemed to include on a consolidated basis
all subsidiaries and other affiliated corporations or other entities with the
same effect as if they were divisions.
10. DEFINITIONS. For purposes of this Agreement, the term "year"
shall mean fiscal year, the term "dependents" shall have the same meaning as
pursuant to Section 152 of the Code and the term "his 60th year" shall mean
immediately following the Executive's 59th birthday. For purposes of this
Agreement, disability shall mean a disability which is, or has the potential to
be, total and permanent and because of which the Executive is or may become
physically or mentally unable to substantially perform his regular duties as an
Executive of the Corporation. Any question as to the existence, extent or
potentiality of disability of the Executive upon which the Executive and the
Corporation cannot aqree shall be determined by a qualified independent
physician selected by the Executive and reasonably acceptable to the
Corporation (or, if the Executive is unable to make such selection, it shall be
made by any adult member of his immediate family). The determination of such
physician made in writing to the Corporation and to the Executive shall be
final and conclusive for all purposes of this Agreement.
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11. AMENDMENTS. This Agreement may not be amended or modified
orally, and no provision hereof may be waived, except in a writing signed by
the parties hereto, and specifically the agreement of any beneficiary, wife,
dependents or other potential or actual third party beneficiary shall not be
required, except as specifically provided for in this Agreement.
12. ASSIGNMENT. This Agreement cannot be assigned by either party
hereto except with the written consent of the other.
13. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the personal representatives and successors in interest of the
Executive and any successors in interest of the Corporation. In addition to
inuring to the benefit of the Executive, Sections 5(a) and 5(b) are intended
to inure to the benefit of the Executive's beneficiaries, Section 5(c)(2) is
intended to inure to the benefit of the Executive's beneficiaries, to the
extent contemplated in that provision, Section 5(c)(3) is intended to inure to
the benefit of the Executive's wife and his dependents, and Section 7 and
Section 8 are intended to inure to the benefit of the Executive's
beneficiaries; such provisions shall be enforceable by the aforesaid
beneficiaries, wife and/or dependents, as the case may be, who upon the
Executive's death shall be deemed successors in interest.
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14. CHOICE OF LAW. This Agreement shall be governed by the law of
the State of Illinois (excluding the law of the State of Illinois with regard
to conflicts of law) as to all matters, including but not limited to matters of
validity, construction, effect and performance.
15. NOTICE. Except as otherwise provided in this Agreement, all
notices and other communications given pursuant to this Agreement shall be
deemed to have been properly given if personally delivered or mailed, addressed
to the appropriate party at the address of such party as shown at the beginning
of this Agreement, postage prepaid, by certified mail or by Federal Express or
similar overnight courier service. A copy of any notice sent pursuant to this
section shall also be sent to Hodgson, Russ, Andrews, Woods & Goodyear, 1800
one M & T Plaza, Buffalo, New York, 14203, Attention: Richard E. Heath, Esq.
and Dianne Bennett, Esq. Any party may from time to time designate by written
notice given in accordance with the provisions of this paragraph any other
address or party to which such notice or communication or copies thereof shall
be sent.
16. SEVERABILITY OF PROVISIONS. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be effected or
impaired thereby and
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this Agreement shall be interpreted as if such invalid, illegal or
unenforceable provision was not contained herein.
17. TITLES. Titles are provided herein for convenience only and are
not to serve as a basis for interpretation or construction of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Corporation has caused this Agreement to be executed in its name and on its
behalf as of the date first above written.
/s/ Jerry N. Derck
-----------------------------------
Jerry N. Derck
DATE OF EXECUTION: October 28, 1994
IDEX CORPORATION
By: /s/ Donald N. Boyce
-------------------------------
Donald N. Boyce, President
DATE OF EXECUTION: October 25, 1994
The undersigned hereby executes this Amendment to evidence her
agreement to be bound by the terms of Subsection 5(c)(2) of the Employment
Agreement.
/s/ Maryann Derck
-------------------------------
Maryann Derck
DATE OF EXECUTION: October 27, 1994