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EXHIBIT 10.25
SUPPLEMENTAL EXECUTIVE RETIREMENT AGREEMENT
THIS AGREEMENT CONTAINS ARBITRATION CLAUSES
This Supplemental Executive Retirement Agreement ("Agreement") made and
entered into as of this 15th day of March, 2000, by and between UNOVA, Inc., a
Delaware corporation (the "Company"), and Larry D. Brady ("Executive").
WHEREAS, the Executive is presently employed by the Company as its
President and Chief Operating Officer; and
WHEREAS, the Executive was previously employed by FMC Corporation and
earned certain vested retirement benefits while in the employ of such
corporation; and
WHEREAS, as an inducement of the Executive to accept employment with the
Company, the Company agreed to provide the Executive with the supplemental
retirement benefits provided in this Agreement and, in addition, the Company
desires to provide the Executive with the disability and death benefits provided
for herein;
NOW, THEREFORE, the Company and the Executive covenant, agree,
represent, warrant and understand as follows:
ARTICLE I -- PURPOSE
The purpose of this Agreement is to provide for supplemental retirement,
disability, and death benefits to Executive and thereby fulfilling an
undertaking made in connection with the Company's employment of the Executive,
and to encourage Executive to continue providing services to the Company. This
Agreement is intended to provide benefits solely for a management or highly
compensated employee within the meaning of Sections 201(2), 301(a)(3), and
401(a)(1) of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). Payments under this Agreement shall be made either from
general assets of the Company or from the assets of a trust which may, in the
sole discretion of the Company, be established hereunder. It is intended that
this Agreement remain at all times an unfunded plan for purposes of ERISA and
that the trust, if established, shall constitute a grantor trust under Sections
671 through 679 of the Internal Revenue Code of 1986, as amended (the "Code").
ARTICLE II -- DEFINITIONS
Section 2.1 "Active Participant" shall mean Executive so long as he
remains employed by the Company continuously from the date hereof, except as
provided for below as to Disability or death. Other than during a period of
Disability, Executive shall be treated as having terminated from employment
during any period of Leave of Absence, unless the Committee, in its sole and
absolute discretion, and subject to such terms and conditions as the Committee
may specify, decides otherwise. However, Executive, while Disabled or if
Executive dies while an Active Participant, shall continue to be treated as an
Active Participant and, thus, continue to accrue additional Years of Service
until the earlier of the date that the Executive attains (or, if deceased, would
have attained) age 62, or the date that Executive is no longer Disabled. If
Executive returns to active employment with the Company when Disability ends, he
shall thereafter be an Active Participant, so long as such employment continues,
without further
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action. If Executive terminates employment with the Company (other than for
Disability) and is subsequently re-employed with the Company he shall not be
treated as an Active Participant unless the Committee determines otherwise.
Section 2.2 "Actuarial Equivalent" shall mean the adjustment of an
amount or amounts using actuarial methods and factors identical with those
actuarial methods and factors then being used, at the time such calculations are
to be made hereunder, under the UNOVA Retirement Plan adopted by UNOVA, Inc. and
intended to be qualified under Section 401(a) of the Code, as such Plan may be
amended from time to time and any retirement plan intended to replace such Plan
(the "Qualified Plan").
Section 2.3 "Average Earnings" shall mean one-fifth of the sum of the
Executive's gross base salary payments made to the Executive as an Active
Participant plus Bonuses as defined in Section 2.6 awarded to the Executive from
the Company (as used in this Section 2.3 and hereinafter the term "Company"
shall have the meaning specified in Section 2.12) for the 60 consecutive
calendar months which produce the highest sum (not taking into account months in
which the Executive received no base salary payments) out of the past 120
calendar months or, if the Executive has been employed by the Company for less
than 120 calendar months as of the date of any calculation (retirement,
disability or death benefits) which utilizes the concept of Average Earnings,
then Average Earnings shall also include a sufficient amount of the Executive's
highest "Earnings" from the Final Average Yearly Earnings figures on page 3 of
the Worksheet and, in the case of 1999, the sum of: 1.) the gross base salary
payments plus gross Bonuses received from the Company during 1999 including for
this purpose the signing bonus paid by UNOVA to the Executive and 2.)
Compensation and Excess Compensation, as defined in the FMC Corporation
Non-Qualified Retirement and Thrift Plan, received from FMC during 1999, in
order to bring the total period covered in such calculation to 120 calendar
months. For all purposes of calculating "Average Earnings" from the Company
under this Supplemental Plan "gross base salary" shall include all payments
credited to Executive related to base compensation before subtracting any
amounts deferred pursuant to Section 401(k) or 125 of the Code or deferred at
the election of the Executive pursuant to any deferred compensation plan of the
Company and does not include any amounts credited as compensation to Executive
relating to the exercise or award under Company Stock-based option or award
plans.
(a). Average Earnings for purposes of calculating a Disability Benefit
for or with respect to Executive shall be calculated using the 120 months or
such shorter period of time described in Section 2.3 above, that include and
precede the month that his Disability commenced. If Executive has returned to
active employment with the Company after a period of Disability but does not
have a minimum of 60 consecutive calendar months of employment with the Company
after such return to active employment, then Average Earnings shall be
calculated by the Committee in accordance with subparagraph (d).
(b). Average Earnings in the case Executive dies while employed by the
Company and prior to attaining age 62 shall be calculated using the 120 months
or such shorter period of time described in Section 2.3 above, that include and
precede the month of Executive's death (or Disability, in the case Executive
dies while Disabled).
(c). For purposes of calculating a lump sum payment pursuant to Section
3.1() (b) in the event of a Change of Control, with respect to Executive (other
than while Disabled or when deceased) and who is an Active Participant as of the
date of such calculation, Average Earnings shall be calculated as if Executive's
employment with the Company ended on such date or the date as revised pursuant
to the terms of any Change of Control Agreement existing between the
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Company and the Executive ("Change of Control Agreement" shall mean any
agreement between the Company and the Executive which provides for the
employment of Executive and/or the payment of compensation to Executive upon or
following a Change of Control).
(d). Notwithstanding the foregoing, the Committee may determine Average
Earnings for the purposes of subparagraphs (a) or (b) of this Section by another
methodology, if that method is more advantageous to Executive, including without
limitations inclusion of "Earnings" with which the Executive was credited under
the FMC Plan.
Section 2.4 "Beneficiary" or "Beneficiaries" shall mean those who are
designated under this Agreement to receive payment of a benefit on account of
Executive's death. If and to the extent the spouse of Executive is living at the
time of Executive's death, only the spouse may be the Beneficiary. Upon the
death of the spouse after the death of Executive but prior to commencement of
Retirement Benefit payments, the Dependent Children of the Participant may be
Beneficiaries, but only of the Death Benefit.
Section 2.5 "Board" shall mean the Board of Directors of UNOVA, Inc. or
of its Successor, as of the time in question, the succession of which did not
result from or constitute or follow a Change of Control ("Successor" or
"Successors").
Section 2.6 "Bonus" or "Bonuses" shall mean the full amount of the bonus
or similar cash incentive determined and awarded to the Executive by the
Committee (or any other body or individual having authority to award such Bonus)
with respect to any given fiscal year or portion thereof and shall be deemed,
for purposes of the calculation of Average Earnings, to have been paid by the
Company to the Executive in equal monthly installments during the fiscal year or
portion thereof with respect to which the Bonus was awarded under
Company-sponsored, formal or informal, incentive compensation or bonus plans,
excluding, however, any payments under stock-based option or award plans;
provided, however, that, for purposes of calculating Average Earnings, any
portion of a Bonus, the payment of which is deferred at the election of the
Executive, shall be treated as having been paid in equal monthly installments
during the fiscal year or portion thereof with respect to which the Bonus was
awarded, notwithstanding such elected deferral, and payment of the deferred
portion shall be disregarded for purposes of calculating Average Earnings.
"Bonus or Bonuses" shall not include any bonus, commission or fee paid to the
Executive for the accomplishment of a particular non-ordinary achievement,
transaction, or circumstance as determined by the Committee prior to or at the
time of the award thereof.
Notwithstanding the foregoing, the following additional provisions shall
be applicable to the definition of "Bonus" or "Bonuses" in the case of an award
or awards made under the UNOVA, Inc. Management Incentive Compensation Plan or
any other annual incentive plan which provides that a portion of an annual award
shall be deposited in a so-called "Bonus Bank" and shall remain "at risk." The
Bonus, in such case, shall comprise only the portion of the annual award which
is paid to the Executive on a current basis and shall not include any amount of
the award required to be deposited to a Bonus Bank; however, the Bonus shall
also include any amount paid to the Executive as a periodic payment from the
Bonus Bank during the year with respect to which the amount was made (but shall
not include any payment from the Bonus Bank made solely as a result of
termination of employment).
Section 2.7 "Business Combination" shall have the meaning specified in
Section 2.8(c).
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Section 2.8 "Change of Control" shall mean:
(a). The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended [the "Exchange Act"] (a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty percent
(30%) or more of either (1) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (2) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of Directors (the "Outstanding Company Voting
Securities"); excluding, however, the following acquisitions of Outstanding
Company Common Stock and Outstanding Company Voting Securities: (A) any
acquisition directly from the Company other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so converted was
itself acquired directly from the Company; (B) any acquisition by the Company;
(C) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or (D)
any acquisition by any Person pursuant to a transaction which complies with
clauses (1), (2), and (3) of paragraph (c) below of this Section 2.8; or
(b). Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual who becomes a member of the Board
subsequent to such effective date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the Directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
provided further that any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election contest (as such
terms are used in Regulation 14a-11 of Regulation 14A promulgated under The
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board shall not be so considered as a
member of the Incumbent Board; or
(c). The approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business Combination"), or,
if such consummation of such Business Combination is subject, at the time of
such approval by shareholders to the consent of any government or governmental
agency, the obtaining of such consent (either explicitly or implicitly by
consummation), excluding, however, such Business Combination pursuant to which
(1) all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination will beneficially own, directly or indirectly, more than sixty
percent (60%) of, respectively, the outstanding shares of common stock and the
combined voting power of the outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be; (2) no
Person (other than any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or such
corporation resulting from such Business Combination) will beneficially own,
directly or indirectly, thirty percent (30%) or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of
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the outstanding voting securities of such corporation entitled to vote generally
in the election of directors except to the extent that such ownership existed
with respect to the Company prior to the Business Combination; and (3) at least
a majority of the members of the board of directors of the corporation resulting
from such Business Combination will have been members of the Incumbent Board at
the time of the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(d). Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Section 2.9 "Chief Executive Officer" shall mean the chief executive
officer of UNOVA, Inc. or of its Successor.
Section 2.10 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
Section 2.11 "Committee" shall mean:
(a). The Compensation Committee of the UNOVA, Inc. Board of Directors.
(b). Notwithstanding Section 2.11(a), upon a Change of Control, the
Committee shall mean exclusively the "Special Administrators." The "Special
Administrators" shall be the individuals who constituted the Company's
Compensation Committee of the Board immediately prior to the Change of Control.
The "Special Administrators" shall constitute the Committee until the earlier of
the termination of this Agreement or the last day of the 18-month period
following the month in which the Change of Control occurred. The "Special
Administrators" shall have all rights and authority reserved to the Committee
under this Agreement, including, but not limited to, the rights specified in
Section 10.2.
(c). If a "Special Administrator" dies, becomes disabled, or resigns as
"Special Administrator" during the period that the "Special Administrators"
constitute the Committee, the remaining "Special Administrator(s)" shall
continue to serve as the Committee without interruption, and successor "Special
Administrator(s)" shall be designated, by the remaining "Special
Administrators". If at any time there are no remaining "Special Administrators,"
the presiding Judge of the Superior Court of the State of California for Los
Angeles County shall designate three "Special Administrators".
Section 2.12 "Company" shall mean UNOVA, Inc., a Delaware corporation,
and its Successors, and their respective subsidiaries. Any reference to stock or
securities of the Company shall mean only the stock or securities of UNOVA, Inc.
or of its Successor.
Section 2.13 "Death Benefit" shall mean the benefit payable pursuant to
Article IV to the Executive's Beneficiary or Beneficiaries, if any.
Section 2.14 "Dependent Children" shall mean a natural or legally
adopted son or daughter who either: (a) has not attained age 19; or (b) has
attained age 19 but has not attained age 23 and is a full-time student at an
accredited educational institution:
Section 2.15 "Director" shall mean a member of the Board of Directors of
UNOVA, Inc. or of its Successor.
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Section 2.16 "Disability" or "Disabled" shall mean the condition of the
Executive, or the Executive, when it has been determined by the Committee that
the Executive is unable to perform the material and substantive duties of the
Executive's position or profession, to an extent which prevents the Executive
from engaging in the Executive's regular position or profession, due to injury
or sickness for which the person is receiving medical care from, or with respect
to which a current certification of disability is received by the Committee
from, a professional person appropriate for such injury or sickness.
Section 2.17 "Disability Benefit" shall mean the benefit payable
pursuant to Article V to the Executive because of Disability.
Section 2.18 "ERISA" shall have the meaning specified in Article I.
Section 2.19 "Exchange Act" shall have the meaning specified in Section
2.8(a).
Section 2.20 "Leave of Absence," with respect to Executive, shall mean
and refer to a discontinuance of regular, full-time services by the Executive
for the Company resulting in the discontinuance, in whole or in part, of base
salary payments by the Company to Executive during such discontinuance of
service, provided, however, that, to the extent federal or state so-called
"Family Leave Acts" or "Maternity or Pregnancy Leave Acts" may make unlawful the
treatment of an absence or a portion of an absence as a termination for purposes
of this Agreement, such absence or portion shall not constitute a Leave of
Absence.
Section 2.21 "Normal Form" shall mean the form of Retirement Benefit
payable under Section 3.7 to a Retired Participant.
Section 2.22 "Normal Retirement Date" shall mean the Executive's 65th
birthday.
Section 2.23 "Offset Amount" shall mean the sum of the annual "FMC
Pension Benefit" and the annual "Company-provided pension."
(a). The "FMC Pension Benefit" shall mean the annualized retirement plan
benefit specified on line 24 of the Worksheet actuarially adjusted by the "early
retirement reduction factor" described in Section 3.3 to reflect the
commencement of benefit payments under this Agreement.
(b). The "Company-provided pension" shall mean the annual amount that is
payable to the Executive under any defined benefit or defined contribution plan
sponsored by the Company, which is either intended to qualify under Section
401(a) of the Code or is intended to restore benefits under such plan (excluding
only this Agreement and Parts II and III of the UNOVA FSSP and of the
Restoration Plan). Any non-United States defined benefit or defined contribution
plan of the Company which is not subject to the Code but which is comparable in
purpose to plans which would qualify under Section 401(a) of the Code shall be
included within the meaning of "Company-provided pension." The amount of the
"Company-provided pension" shall be calculated under the terms that were in
effect during the Executive's actual participation, except that a subsequent,
retroactive amendment to any of such plans shall be taken into account only to
the extent that it actually would have increased the Executive's benefit under
that plan. The "Company-provided pension" shall be computed as if the Executive
actually received the plan benefits under such "Company-provided pension" as a
single life annuity beginning on the date that Retirement Benefits commence
under this Agreement and actuarially adjusted by the early retirement reduction
factors used under each of the plans.
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Section 2.24 "Outstanding Company Common Stock" and "Outstanding Company
Voting Securities" shall have the meanings specified for those items in Section
2.8(a).
Section 2.25 "Person" shall have the meaning specified in Section
2.8(a).
Section 2.26 "Qualified Plan" shall have the meaning specified in
Section 2.2.
Section 2.27 "Retirement Benefit" shall mean the benefits payable to
Executive and, if applicable, the Beneficiary of Executive, as provided in
Article III.
Section 2.28 "Social Security Covered Compensation Base" means the
average of the compensation and benefit bases in effect under Section 230 of the
Social Security Act for each year in the 35-year period ending with the year in
which the participant attains Social Security retirement age as defined in
Section 415(b)(8) of the Code.
Section 2.29 "Special Administrators" shall have the meaning specified
in Section 2.11(b).
Section 2.30 "Successor" or "Successors" shall have the meaning
specified in Section 2.5.
Section 2.31 "Trust" shall mean a grantor trust under Section 671
through 679 of the Code, if and when established. The decision to establish a
Trust shall be in the sole and absolute discretion of the Company.
Section 2.32 "Trustee" shall mean the trustee of the Trust.
Section 2.33 "Trust Agreement" shall mean the terms of the agreement,
entered into between UNOVA, Inc. or its Successor and the Trustee, that
establishes the Trust.
Section 2.34 "Worksheet" shall mean the three page document marked
Exhibit A, attached to this Agreement, entitled "Salaried Employees' Retirement
Plan Calculation Worksheet", calculated on 7/15/99, for Larry Brady.
Section 2.35 "Years of Service" shall mean the number resulting from:
(a). The division of twelve into the number of consecutive and
continuous calendar months of employment with the FMC Corporation and the
Company that elapse from and include the month that Executive commenced
employment with FMC Corporation and which ends: (1) upon the Executive's death;
or (2) upon termination of Executive's employment with the Company other than by
death, until and including the earlier of the month of such death or
termination; provided, however, that for an Executive who dies or becomes
Disabled while an Active Participant, Executive shall continue to accrue Years
of Service from the date of such death or Disability until the earlier of the
calendar month (x) in which Executive attains or, if deceased, would have
attained age 62, or (y) in which Executive is no longer Disabled.
(b). In its discretion, the Committee may credit Executive with Years of
Service in addition to the Years of Service accrued while actually employed with
FMC or the Company.
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(c). For purposes of calculating a lump sum payment pursuant to Section
3.1(b) in the event of a Change of Control, with respect to Executive while an
Active Participant, Years of Service shall be determined as if the Executive's
employment with the Company ended on such date or, if that date is adjusted
pursuant to the terms of any Change of Control Agreement between the Company and
the Executive, then that later date.
ARTICLE III -- RETIREMENT BENEFITS
Section 3.1 Eligibility for Retirement Benefit.
(a). General. Executive shall be eligible to begin receiving a
Retirement Benefit if Executive has (1) attained age 55 (subject to the "early
retirement reduction factor" specified in Section 3.3); (2) filed an election to
receive payments under Article VI; (3) terminated employment with the Company;
and, (4) except when Executive's employment with the Company is terminated in
connection with a Change of Control, the Executive agrees that for a period of
five years after commencement of receipt of Retirement Benefits under this
Agreement, not to engage in any activity which interferes with the economic or
business interests, or contractual relationships of UNOVA, Inc. or its
Successors or of any of its subsidiaries or affiliates with third parties in
connection with which the Participant worked for UNOVA, Inc. or its subsidiaries
or affiliates or to perform services for any entity in competition with a
business of UNOVA, Inc. or of its subsidiaries or affiliates for which the
Executive worked and with respect to which the Executive possesses trade secrets
or business confidential information of UNOVA, Inc. or of its subsidiaries or
affiliates. In the event that any provision of the covenant provided for in (4)
immediately above shall be held invalid or unenforceable by reason of the
geographic or business matter scope, or the duration thereof, such invalidity or
unenforceability shall attach only to such provisions and shall not affect or
render invalid or unenforceable any other provision of this Agreement, and this
Agreement shall be construed as if the geographic or subject matter scope, or
the duration thereof, had been more narrowly drafted so as not to be invalid or
unenforceable.
(b). Change of Control. Except as otherwise provided in any Change of
Control Agreement between the Company and the Executive, notwithstanding
anything herein to the contrary, upon a Change of Control, if Executive is an
Active Participant or if Executive has satisfied the conditions of Section
3.1(a)(3), Executive shall be entitled to a lump sum payment equal to the
Actuarial Equivalent, at the age of such Participant at the date of the Change
of Control, of the Retirement Benefit which would be payable to such Participant
at the Executive's Normal Retirement Date, assuming, for such purposes, that the
Retirement Benefit is payable in the form of a single life annuity. In addition,
there shall be waived any condition concerning eligibility for payment of a
Retirement Benefit that requires: (1) the filing of any election; (2) an
agreement not to engage in competitive activities with the Company; (3) the
application of the early retirement reduction factor described in Section 3.3;
and (4) as to the Executive, termination of employment with the Company, in
order to begin receiving Retirement Benefits.
Section 3.2 Retirement Benefit Formula. Subject to the provisions of
Section 3.3, the Executive's Retirement Benefit shall be equal to: the product
of (a) multiplied by (b) below minus (c).
(a) one-twelfth (1/12) of the sum of (i) and (ii) below:
(i). the sum of (A) one percent (1%) of the Executive's Average
Earnings up to the Social Security Covered Compensation Base and (B)
one and one-half percent
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(1 1/2%) of the Executive's Average Earnings in excess of the Social
Security Covered Compensation Base multiplied by the Executive's
Years of Service at age 65 up to 35 Years of Service; and
(ii). One and one-half percent (1 1/2%) of the Executive's Average
Earnings multiplied by the Executive's expected Years of Service at
age 65 in excess of 35 Years of Service.
(b). The ratio of actual Years of Service to expected Years of Service
at age 65.
(c). One-twelfth (1/12) of the Offset Amount.
Section 3.3 Early Retirement Benefits. If the Executive retires prior to
the age of 65, the Executive shall be entitled to receive a Retirement Benefit,
subject to the "early retirement reduction factor," commencing as of the first
of the month after the Executive retires or, if the Executive elects, as of the
first day of any subsequent month. Any such election of a deferred commencement
date may be revoked at any time prior to such date by the Executive, and a new
date may be elected by giving 60 days written notice to the Committee or its
designee for purposes of administering this Agreement. The "early retirement
reduction factor" provides that the Retirement Benefit computed under section
3.2 shall be reduced by 1/3 of 1% for each month by which the commencement of
the payment of the Retirement Benefits precedes the Executive's 62nd birthday.
Section 3.4 Retirement After Age 65. If the Executive retires after his
Normal Retirement Date, he shall be entitled to receive a Retirement Benefit
determined under Section 3.2 commencing as of the first day of the month
coinciding with or next following the date the Executive actually retires, and
the Executive shall accrue additional benefits hereunder after the Executive's
Normal Retirement Date.
Section 3.5 Vested Retirement Benefit. Executive has a vested right to a
Retirement Benefit under this Agreement as of the date hereof.
Section 3.6 Retirement Benefit Forms. Unless Executive had made an
election to receive payment of Retirement Benefits in an available alternative
form, Executive shall be deemed to have elected the Normal Form.
Section 3.7 Normal Form of Retirement Benefit.
(a). Single Life Annuity. The Normal Form of payment of a Retirement
Benefit for Executive who is living at the time payment commences and who is
unmarried on such date shall be a single life annuity. All payments shall cease
upon Executive's death.
(b). Joint and Survivor Annuity. If Executive is married at the time
that payment of the Retirement Benefit commences, the Normal Form of Retirement
Benefit shall be a 100% joint and survivor annuity (which shall be the Actuarial
Equivalent of a single life annuity) for the benefit of the Executive's spouse
as of the date that payment of the Retirement Benefit commences. Under the
Normal Form of a joint and survivor annuity, Executive shall receive a monthly
benefit for life and, upon the Executive's death, the spouse, if living, shall
receive a monthly benefit for life equal to 100% of the monthly benefit that was
payable to the Executive. If Executive dies prior to the commencement of the
payment of Retirement Benefits, and was married at the date of death, the spouse
Beneficiary of Executive shall have the right to a
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survivor Retirement Benefit, commencing at the date Executive would have
attained age 62, except for the fact that the Participant died prior to
attaining age 62, or commencing on the first day of the month following the
month in which the Executive died, if the Executive continued in continuous
employment with the Company after attaining age 62 and until the date of
Executive's Participant's death, calculated under Section 3.2 as if the
Executive had survived to such age and begun receiving payment of the Retirement
Benefit at such age as a joint and 100% survivor annuity and then died on the
following date.
Section 3.8 Alternative Forms of Benefit.
(a). Election of Forms of Benefit. Prior to the commencement of payment
of a Retirement Benefit, Executive may file an election designating a payment
form other than the Normal Form of Retirement Benefit; provided, however, that
any such alternate payment form is a payment form available under the Qualified
Plan and, if Executive is entitled to a benefit under such Qualified Plan, is
the same as the payment form elected under such Qualified Plan. The amount of
payment under such alternative payment form shall be the Actuarial Equivalent of
a single life annuity. If Executive is married, an election to receive a
Retirement Benefit in a form other than the Normal Form shall be valid only if
such election includes the written consent of the Executive's spouse in the form
and manner specified by the Committee. However, a joint and survivor annuity
shall not be available under this Agreement with respect to any Beneficiary
other than the spouse of the Executive as of the date that the Retirement
Benefit commences.
(b). Additional Forms of Benefit. From time to time, the Committee may,
in its sole discretion, make other forms of payment of Retirement Benefits
available; provided, however, that once Executive or Executive's Beneficiary
begins receiving Retirement Benefit payments, no change may be made in the form
of payment except as provided for in Section 3.8(c) below.
(c). Form of Benefit on Change of Control. Notwithstanding the other
provisions of this Section, upon a Change of Control, all Retirement Benefits
including, without limitation, benefits payable to Active Participants who
remain employed by the Company, shall be paid in a single sum payment that is
the Actuarial Equivalent at the age of the Executive as of the date of Change of
Control of a single life annuity payable at the later of age 62 or, if the
Executive had remained in continuous employment with the Company after attaining
age 62, the age of the Executive at the date of Change of Control.
ARTICLE IV -- BENEFITS UPON EXECUTIVE'S DEATH
Section 4.1 Eligibility for Death Benefit. The Beneficiary or
Beneficiaries of Executive in the event Executive dies while an Active
Participant or while Disabled and prior to attaining age 62 and prior to the
time Retirement Benefits to Executive commence, shall be eligible to begin
receiving a Death Benefit if the Beneficiary or Beneficiaries have filed a claim
under Article VI. The Beneficiary or Beneficiaries of Executive shall not be
eligible for a Death Benefit, if the Executive's employment with the Company
terminated prior to Executive's death other than by reason of Disability. If
there are no Beneficiaries at the date of the Executive's death, no Death
Benefit shall be payable. The class of individuals who are eligible to be
Beneficiaries of the Death Benefit is limited to the Executive's spouse, as of
the date of the Executive's death, and the Executive's Dependent Children as of
the date of Executive's death; provided, however, that such term also shall
include any natural children of Executive born after Executive's death and any
child who is in the process of being adopted by the Executive at the date of
Executive's death and the adoption of whom is completed by the spouse of
Executive after the date of Executive's death. If there is both a living spouse
and Dependent Children as
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of the date of Executive's death, the Beneficiary shall be the spouse. The
Dependent Children shall become the Beneficiaries of the Death Benefit, but only
upon the death of Executive's spouse prior to the earlier of the date the
Executive would have attained age 62, or the date the Participant's spouse
commences to receive a Retirement Benefit.
Section 4.2 Death Benefit.
(a). Spousal Benefit. The Death Benefit for the surviving spouse of
Executive shall be an annual amount equal to 40% of Executive's Average
Earnings. The spouse Beneficiary shall receive the Death Benefit as a monthly
benefit equal to 1/12 of the Death Benefit. The Death Benefit for the spouse
Beneficiary shall cease on the earlier of: (1) the death of the spouse
Beneficiary; or (2) the date at which the Executive would have attained age 62.
(b). Dependent Children Benefit. If there is no spouse Beneficiary or a
spouse Beneficiary of Executive dies prior to the death of Executive and the
Executive dies prior to attaining age 62 while an Active Participant or while
Disabled, then a Death Benefit shall be paid to any then Dependent Children for
so long as any such remain Dependent Children. The aggregate amount of any Death
Benefit payable to Dependent Children for each month is the amount equal to the
monthly Death Benefit that would be payable to a spouse Beneficiary multiplied
by a fraction (not greater than one), the numerator of which is the number of
Dependent Children at the time of each monthly payment and the denominator of
which is three. If there are no remaining living Dependent Children
Beneficiaries, no further Death Benefit shall be paid.
(c). Vesting in Death Benefit. While an Active Participant or Disabled,
Executive shall at all times be vested in his right to a Death Benefit.
Section 4.3 Spouse Retirement Benefit. To the extent that a spouse
Beneficiary is receiving a Death Benefit on the date the Executive would have
attained age 62, the spouse Beneficiary thereafter shall receive a Retirement
Benefit pursuant to Article III, if eligible, in the amount calculated pursuant
to Article III, and no further Death Benefit payments shall be payable to the
spouse Beneficiary or to any Dependent Children Beneficiaries or otherwise.
Section 4.4 Change of Control. Upon a Change of Control, after the
Executive's death while an Active Participant or after the Executive's death
while Disabled but in either case prior to the date the Executive would have
attained age 62, the Executive's spouse, if then living, shall receive a single
sum payment that is the Actuarial Equivalent, the date of such lump payment, of
the Death Benefit, calculated through the date that Executive would have
attained age 62. The spouse Beneficiary, if then living, shall also be entitled
to the lump sum payment of the Retirement Benefit, if any, pursuant to Section
4.3. Upon a Change of Control occurring after commencement of the payment of
Death Benefits to the Dependent Children Beneficiaries pursuant to Section
4.2(b), the Dependent Children shall receive a single sum payment that is the
Actuarial Equivalent, based upon the ages of the Dependent Children, of the
Death Benefit calculated without regard to the date the Executive would have
attained age 62.
ARTICLE V -- BENEFITS OF DISABLED EXECUTIVE
Section 5.1 Eligibility for Disability Benefit. If while an Active
Participant, Executive becomes Disabled prior to attaining age 62, Executive
shall be eligible to begin receiving a Disability Benefit. The Disability
Benefit shall cease on the earlier of: (1) the first day of the calendar month
following the Executive's attainment of age 62; (at which time a Retirement
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Benefit may be payable under Article III), (2) the date on which the Committee
determines that the Executive is no longer Disabled; or (3) the date of the
Executive's death (in which case a Death Benefit may be payable under Article
IV).
Section 5.2 Disability Formula. A Disability Benefit shall be a monthly
amount equal to 1/12 of 40% of the Executive's Average Earnings, offset by the
sum of: (a) any other payment to the Executive that would be made by or on
behalf of the Company on account of the Disability (including, without
limitation, a Company-sponsored disability insurance plan or any other benefit
plan of the Company, any amounts payable as sick pay, and any amounts payable
under so-called Workers Compensation Acts or similar laws of foreign governments
other than lump sum amounts for the loss of an organ or other body member and
other than amounts paid for medical expenses), calculated as if the Executive
participated to the fullest extent possible in such disability programs; and (b)
the Social Security disability benefits received by the Executive. For purposes
of determining any offset under the preceding sentence, any payments that are
not made on a monthly basis shall be converted to monthly payments under a
methodology approved by the Committee.
Section 5.3 Vesting Disability Benefit. Executive, while an Active
Participant shall at all times be vested in his right to a Disability Benefit.
Section 5.4 Disabled Executive's Retirement Benefit. If Executive
attains age 62 while Disabled, then he may be eligible to receive a Retirement
Benefit subject to the rules of Article III, as if Executive continued his or
her employment until age 62 with Average Earnings calculated as provided for in
Section 2.3(a).
ARTICLE VI -- ELECTIONS, CLAIMS, COMMENCEMENT OF
PAYMENT AND BENEFICIARY DESIGNATIONS
Section 6.1 General. All elections to receive benefits under this
Agreement must be made in writing to the Committee in the form specified by the
Committee and include the information or documentation that the Committee deems
necessary. The Committee, in its discretion, may request additional information
or reasonable documentation from time to time in order to determine whether
Executive receiving a Disability Benefit continues to be Disabled, and in order
to determine whether any Beneficiary who is receiving a Death Benefit is
entitled hereunder to continue receiving a Death Benefit or the amount thereof.
Section 6.2 Commencement of Payments. Payments of benefits under this
Agreement shall begin as soon as administratively feasible after the Executive
(or Beneficiary, if applicable) has provided a claim for benefits in writing to
the Committee, including any supporting documentation required by the Committee,
and the Committee has determined that the Executive (or Beneficiary, if
applicable) satisfies the requirements for payment. Disability and Death
Benefits shall be payable from the first day of the month following the month in
which the Executive becomes disabled or dies, as the case may be. In the event
of any administrative delay in actual payments, payments shall be made
retroactively to the first day of the month following the month in which the
event which is the basis for the payment occurs but without any payment of
interest or other compensation for such delay in payment. Notwithstanding any
provision of this Agreement, upon a Change of Control the Committee may, in its
sole discretion, determine to postpone the lump sum payment of Retirement, Death
and Disability Benefits payable upon a Change of Control, in which case such
Benefit payments shall be made as otherwise provided in this Agreement, without
regard to the Change of Control, provided however, that if Executive is party to
a Change of Control Agreement, such Benefit
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payments shall be calculated using the age of Executive as adjusted pursuant to
the Change of Control Agreement. In the event the Committee later determines, in
its sole discretion, to effect such a lump sum payment of the remainder of such
Benefits, it shall have the power and authority to do so.
Section 6.3 Form of Benefit Elections. An election to receive payment of
Retirement Benefits in a form other than the Normal Form must be submitted to
the Committee in writing at any time prior to the commencement of payments. An
election must be made in the form specified by the Committee and include the
information or documentation that the Committee deems necessary, including
written consent of the spouse in the case Executive is married and elects a
Retirement Benefit in a form other than the Normal Form. The filing of an
election as to the form of Retirement Benefits shall revoke any pre-existing
election, except that a revocation of an election by Executive while married
shall be valid only if accompanied by the spouse's written consent to the
subsequent election (other than a subsequent election to receive payments in the
Normal Form), and except that once Retirement Benefits have commenced under this
Agreement, the form of the Retirement Benefit payable is irrevocable.
Section 6.4 Beneficiaries. If the Committee makes available alternative
benefit forms that provide for payments after an Executive's death, the
Executive shall designate the Beneficiary under such payment form in accordance
with the procedures set forth by the Committee.
Section 6.5 Failure to Claim. If Executive upon termination of
employment with the Company, fails to claim payment of Retirement Benefits until
a date after such termination of employment, the Retirement Benefits payable to
or with respect to Executive shall, nevertheless, be the monthly amount which
would have been payable to Executive upon termination of employment with the
Company, and Executive shall be entitled to receive Retirement Benefit payments
retroactive to the month such payments would have first accrued following
termination of employment, but without interest or other payment on account of
such deferred payment.
ARTICLE VII -- ADMINISTRATION
The Committee shall administer the Agreement in accordance with its
terms and purposes. The Committee shall have full authority and discretion to
interpret the Agreement, to determine benefits pursuant to the terms of the
Agreement, to establish rules and procedures necessary to carry out the terms of
the Agreement, and to waive or modify any requirements or conditions on the
receipt or calculation of benefits under the Agreement where the Committee
determines that such a waiver or modification is appropriate. In the event
Executive is or was also a participant in a similar supplemental retirement plan
for highly-compensated employees within the meaning of Sections 201(2), 301(a),
and 401(a)(I) of Title I of ERISA and maintained by UNOVA, Inc. or one of its
subsidiaries or affiliates (a "Subsidiary Plan"), the Committee shall have the
power and authority to modify and integrate the benefits payable under this
Agreement with the benefits payable under the Subsidiary Plan. All decisions by
the Committee shall be final and binding on all parties. The Committee may
appoint one or more officers or employees of the Company to act on the
Committee's behalf with respect to administrative matters related to the
Agreement.
ARTICLE VIII -- SOURCE OF PAYMENTS
Section 8.1 General Assets of Company. Benefits payable under this
Agreement shall be paid directly to the Executive, or to the Executive's
Beneficiary, as applicable, from the
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general assets of the Company, including the assets of the grantor Trust to the
extent that such a trust is created and so provides. If any person acquires a
right to receive payments from the Company under this Agreement, such right
shall be no greater than the right of any unsecured general creditor of the
Company notwithstanding the fact that the Company may establish an advance
accrual reserve on its books against its future liability under this Agreement.
ARTICLE IX -- CLAIMS AND ENFORCEMENT
Section 9.1 Administrative Procedures.
(a). Notice of Denial. If the Committee determines that any person who
has submitted a claim for payment of benefits under this Agreement is not
eligible for payment of benefits or, if applicable, is not eligible for payment
of benefits in the form or amount requested, then the Committee shall, within a
reasonable period of time, but no later than 90 days after receipt of the
written claim, notify the claimant of the denial of the claim. Such notice of
denial: (1) shall be in writing; (2) shall be written in a manner calculated to
be understood by the claimant; and (3) shall contain: (A) the specific reason or
reasons for denial of the claim; (B) a specific reference to the pertinent
Agreement provisions or administrative rules and regulations upon which the
denial is based; (C) a description of any additional material or information
necessary for the claimant to perfect the claim; and (D) an explanation of the
Agreement's appeal procedures.
(b). Reconsideration Procedures. Within 90 days of the receipt by the
claimant of the written notice of denial of the claim, the claimant may file a
written request with the Committee that it conduct a full and fair review of the
denial of the claimant's claim for benefits. The claimant's written request must
include a statement of the grounds on which the claimant appeals the original
claim denial. The Committee shall deliver to the claimant a written decision on
the claim promptly, but not later than 60 days after the receipt of the
claimant's request for review, except that if there are special circumstances
that require an extension of time for processing, the 60-day period shall be
extended to 120 days, in which case written notice of the extension shall be
furnished to the claimant prior to the end of the 60-day period.
Section 9.2 Enforcement.
(a). Right to Enforce. Within 90 days after exhaustion of the review and
appeal procedures provided for in Section 9.1 or, if the Committee fails to
grant or deny the claim within 120 days after the claimant's original claim or
fails to provide the written decision of the Committee on any written request
for reconsideration within the time period in Section 9.1(b), within 90 days
after such failure, the Company's obligations under the Agreement may be
enforced only through binding arbitration as provided for hereinafter, initiated
by Executive or, upon the death of Executive, by Executive's surviving spouse,
Dependent Child, or personal representative (as the case may be, the
"Claimant").
(b). Attorneys' Fees and Costs. If, prior to a Change of Control, any
Claimant is denied a claim, in whole or in part, for benefits under this
Agreement and the Claimant requests reconsideration under the procedures
described in Section 9.1(b), or initiates any other legal proceeding (other than
binding arbitration pursuant to the following provisions of this Article IX)
with respect to such alleged claim, the Company shall have no obligation to pay
or reimburse the Claimant for attorneys' fees and costs. If, on or after a
Change of Control, any Claimant is denied a claim for benefits under this
Agreement and the Claimant has requested reconsideration under the procedures
described in Section 9.1(b), or initiates binding arbitration
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or both reconsideration and binding arbitration, to enforce any obligation of
the Company under this Agreement the basis of which is alleged failure of the
Committee to administer this Agreement in accordance with its terms or, if
following a Change of Control, the Company fails to make payment of Benefits as
determined by the Committee, the Company shall pay such Claimant's attorneys'
fees and costs incurred in connection with the review and binding arbitration
proceedings, provided that the arbitrator determines that the claim is not
frivolous. All attorneys' fees and costs payable under this Section 9.2(b) shall
be paid by the Company as they are incurred by the Claimant, but no later than
30 days from the date that the Claimant submits a bill or other statement to the
Company.
(c) Interest. If any Claimant prevails in a reconsideration procedure
described in Section 9.1(b), or if a Claimant prevails in the binding
arbitration proceeding pursuant to Section 9.3(a) to enforce the payment of
benefits under this Agreement, the Company shall pay interest to the Claimant on
any unpaid benefits accruing from the date that benefit payments should have
commenced and continuing until the date that such owed and unpaid benefits are
paid to the Claimant in full. For purposes of the preceding sentence; interest
shall accrue at an annual rate equal to one percent, plus the prime rate
reported by The Wall Street Journal as in effect from time to time, each change
in the prime rate to be effective for purposes of any interest computation on
the date of publication of such changed prime rate in The Wall Street Journal.
Section 9.3 Arbitration. The rights of Executive hereunder are
conditional upon the acceptance by Executive, on the Executive's behalf and on
behalf of the Claimants, of all of the terms and conditions of this Agreement
including specifically and without limitation this Article IX. Any controversy
or claim arising out of or under the Agreement which is not resolved by the
reconsideration referred to in Section 9.1(b) shall be settled by arbitration in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA") or the Employment Arbitration Rules
of the Judicial Arbitration and Mediation Services/Endispute ("JAMS"), subject
to the further provisions of this Section 9.3. Hereinafter the term "Rules"
means and refers to the aforesaid AAA Rules or the JAMS Rules, as the case may
be. Judgment upon the award rendered by the arbitrator may be rendered in any
court having jurisdiction. The Rules are modified or supplemented as follows:
(a). There shall be one arbitrator, unless the parties agree to more
than one arbitrator;
(b). The arbitrator shall be a retired judge or attorney with
professional experience and expertise in designing or administering corporate
retirement benefits and plans, and resident in the Southern California area,
unless the parties agree otherwise;
(c). The arbitration shall be conducted within Los Angeles County,
California, unless the parties agree otherwise;
(d). The party desiring to initiate the arbitration shall advise the
other party in writing of such desire;
(e). Within 10 days of receipt of a notice pursuant to subparagraph (d)
above the party receiving the notice shall designate either the AAA or JAMS as
the arbitration agency, but in the event such party fails to designate within
such period the initiating party shall have the right to designate the AAA or
JAMS.
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(f). All claims arising under this Agreement known or which should be
known to the party initiating the arbitration shall be included in the issues
presented to the AAA or JAMS, as the case may be, for arbitration and any which
are not included shall be effectively waived;
(g). The expedited procedures of the AAA or JAMS, as the case may be,
shall be applied in any case where no disclosed claim or counterclaim exceeds
the amount then established by the AAA or JAMS for use of expedited procedures,
exclusive of interest and arbitration costs;
(h). The decision of the arbitrator shall be rendered within 60 days
after the close of hearings;
(i). The Company and the Claimant shall furnish to the other, 30 days
prior to the first hearing, a list and identification of all witnesses, and
copies of all exhibits intended to be submitted by that party. Ten days prior to
the first hearing, each party shall have the right to supplement their intended
list of witnesses and provide additional exhibits. Only such witnesses and such
exhibits identified by one party or the other may be offered in the arbitration
hearings; and
(j). Any documents, affidavits or other evidence requested by the
arbitrator must be submitted within ten days after conclusion of the arbitration
hearings, unless the arbitrator grants additional time;
ARTICLE X -- MISCELLANEOUS
Section 10.1 Employment Rights. Nothing contained in this Agreement
shall be construed as a contract of employment between the Company and the
Executive, or as a right to continued employment with the Company, or as a
limitation of the right of the Company to discharge Executive, with or without
cause.
Section 10.2 Rights of the Committee. To the extent permitted by law,
the Company shall indemnify the Committee (including any officers and employees
of the Company appointed to act on behalf of the Committee) and hold such
individuals harmless from and against any damages, losses, costs, and expenses
incurred (including, without limitation, expenses of investigation and the fees
and expenses of counsel) in the course of administering this Agreement. The
Company shall bear all expenses of the Committee incurred in the course of
administering this Agreement.
Section 10.3 Assignment. The benefits payable under this Agreement may
not be assigned or alienated.
Section 10.4 Applicable Law. This Agreement shall be governed by the
laws of the state of California and applicable United States Federal law.
Section 10.5 Entire Agreement. This writing is the final expression of
this Agreement and a complete and exclusive statement of its terms, except that
to the extent that this Agreement refers to the Trust, the terms of the Trust
Agreement, as of the date immediately preceding a Change of Control, shall be
deemed to be incorporated herein.
Section 10.6 Terms. Except as required otherwise by the context,
capitalized terms that are used in this Agreement shall have the meaning
assigned to them in Article II or
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elsewhere in this Agreement. Feminine or neuter pronouns shall be substituted
for those of the masculine form and the plural shall be substituted for the
singular, in any place or places herein where the context may require such
substitution or substitutions. The title and headings of the Sections of this
Agreement are for convenience only, and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
Section 10.7 Waiver. Any waiver of or failure to enforce any provision
of this Agreement in any instance shall not be deemed a waiver of such provision
as to any other or subsequent instance.
In Witness Whereof, intending to be legally bound, the parties hereto
have executed this Agreement or caused this Agreement to be executed on their
respective behalfs on and as of the day and year first appearing in this
Agreement.
UNOVA, INC.
By: /s/ Virginia S. Young
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Virginia S. Young
Vice President and Secretary
EXECUTIVE
/s/ Larry D. Brady
-----------------------------------------
Larry D. Brady
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