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Exhibit 10.10
MILACRON
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
I. PURPOSE
The purpose of the Milacron Supplemental Executive Retirement Plan (the
"Plan") is to provide supplemental retirement benefits to certain key
employees of Milacron Inc. and its subsidiaries (the "Company") who
meet the eligibility requirements of the Plan.
II. DEFINITIONS
"Benefit Commencement Date" - shall be the date as determined by
Article IX herein.
"Compensation" - shall have the same meaning as that term is defined in
the Milacron Retirement Plan, without regard to any dollar limitations
and including employee deferrals under the Milacron Compensation
Deferral Plan.
"Compensation Committee" - shall mean the Compensation Committee of the
Milacron Inc. Board of Directors.
"Eligible Position" - shall mean the position of Chairman, President or
Vice President of Milacron Inc. held by an individual who is first
elected to the position of either Chairman, President or Vice President
of Milacron Inc. prior to July 30, 1998 and who continues to hold any
such position after July 30, 1998 or any specific position held by an
individual subsequent to that individual's designation as a key
employee by the Compensation Committee for purposes of this Plan.
"Highest Average Compensation" - shall mean the highest average of the
Participant's Compensation for three consecutive years.
"Normal Retirement Date" - shall have the same meaning as that term is
defined in the Milacron Retirement Plan.
"Participant" - shall mean an individual eligible to participate in
this Plan as set forth in Article V.
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"Years of Credited Service" - shall have the same meaning as
that term is defined in the Milacron Retirement Plan.
Solely for purposes of this Plan, the above terms that are
defined in the Milacron Retirement Plan shall be applied to
the Participant with respect to his employment with the
Company, regardless of the Participant's eligibility under the
Milacron Retirement Plan.
III. EFFECTIVE DATE/PLAN YEAR
This Plan will be effective beginning January 1, 1994. The
Plan year shall coincide with the calendar year.
IV. ELECTION
Individuals may not participate in both this Plan and the
Milacron Supplemental Pension Plan or the Milacron
Supplemental Executive Pension Plan. Individuals eligible to
participate in this Plan and the Milacron Supplemental Pension
Plan or the Milacron Supplemental Executive Pension Plan must
inform the Compensation Committee at the time of termination
of the employment relationship between the Company and the
individual as to which plan the individual shall participate.
V. ELIGIBILITY
An individual shall be eligible to participate in the Plan and
thus become a "Participant" if:
A. The individual holds or has held an Eligible
Position; and,
(i) the individual remains in the employ of the
Company at least until his Normal Retirement
Date; or,
(ii) the individual is an employee of the Company
on or after his 55th birthday and has at
least ten (10) Years of Credited Service
with the Company; or,
(iii) the individual terminates employment with
the Company due to disability as set forth
in Article VIII, below. Or,
B. The individual dies while holding an Eligible
Position as set forth in Article X, below.
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VI. BENEFIT
Participants who have ten (10) Years of Credited Service or
more as an officer of Milacron Inc. shall receive as the
annual benefit as of the Benefit Commencement Date the greater
of: (i) one percent (1%) of the Participant's Highest Average
Compensation for each Year of Credited Service the Participant
served as an officer of Milacron Inc., however, in no event
shall this annual benefit exceed ten percent (10%) of the
Participant's Highest Average Compensation; or, (ii) an amount
necessary to increase the Participant's combined annual
benefits under this Plan, the Milacron Retirement Plan, the
Milacron Retirement Savings Plan, the Milacron Compensation
Deferral Plan and the Milacron Inc. Supplemental Retirement
Plan to fifty-two and one half percent (52.5%) of the
Participant's Highest Average Compensation.
For purposes of this Plan, the Participant's vested account
balance, if any, attributable to Employer Basic Contributions
under the Milacron Retirement Savings Plan and Basic Credits
and Discretionary Credits under the Milacron Compensation
Deferral Plan will be converted to an actuarially equivalent
annual benefit payable for the Participant's lifetime
commencing at the Participant's Benefit Commencement Date,
determined based on the actuarial assumptions used to
calculate lump sum amounts as set forth in the Milacron
Retirement Plan.
All other Participants shall receive as the annual benefit as
of the Benefit Commencement Date, one percent (1%) of the
Participant's Highest Average Compensation for each Year of
Credited Service the Participant served in an Eligible
Position, however, in no event shall this annual benefit
exceed ten percent (10%) of the Participant's Highest Average
Compensation.
VII. MAXIMUM BENEFIT
In no event shall a Participant receive total combined annual
benefits from this Plan, the Milacron Retirement Plan, the
Milacron Retirement Savings Plan (as determined under Article
VI), the Milacron Compensation Deferral Plan (as determined
under Article VI) and the Milacron Inc. Supplemental
Retirement Plan in excess of 60% of the Participant's Highest
Average Compensation and benefits from this Plan shall be
reduced accordingly, if necessary.
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VIII. DISABILITY
An individual who terminates employment with the Company due
to disability prior to his 55th birthday will be a Participant
if:
(i) the individual at the time of disability held an
Eligible Position; and
(ii) the individual has ten (10) years Credited Service
with the Company; and
(iii) the disability is certified by a physician or
physicians designated by the Compensation Committee.
IX. BENEFIT COMMENCEMENT DATE
Except as otherwise stated in this Article IX and Article X,
benefits shall commence on a Participant's Normal Retirement
Date.
For those Participants retiring prior to their Normal
Retirement Date, benefits shall commence upon the date of
retirement and shall not be actuarially reduced.
Benefits to a Participant who terminates employment with the
Company due to disability prior to age 55 shall commence upon
the date the Participant begins receiving benefits from the
Milacron Retirement Plan or would be eligible to receive
benefits from the Milacron Retirement Plan if he participated
therein.
X. DEATH
An individual who dies while employed by the Company and who
is not otherwise a Participant in this Plan shall be a
Participant if:
(i) the individual holds an Eligible Position at the time
of death; and,
(ii) the individual was at the time of his death vested in
the Milacron Retirement Plan or the Cincinnati
Milacron Retirement Savings Plan.
If a Participant dies prior to commencement of benefits under
this Plan and the Participant is survived by a spouse to whom
he was married on the date he became vested under this Plan,
the Participant's surviving spouse shall receive monthly
benefits under this Plan, at the time benefits may begin to
the surviving spouse under the Milacron Retirement Plan, in
the form of a life annuity in the amount of fifty percent
(50%) of
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the Participant's benefits under this Plan (with a reduction
for commencement prior to the date the Participant would have
attained age 55, with such reduction determined in accordance
with the Milacron Retirement Plan), determined in accordance
with Article VI.
XI. PAYMENT OPTIONS
Benefits shall be paid to Participants on a monthly basis.
Participants who are single shall receive benefits under this
Plan in the form of a life annuity. Participants who are
married shall receive benefits in the form of a fifty (50%)
percent joint and survivor annuity which shall not be
actuarially reduced; however, the benefit to the Participant's
spouse shall be available only if the Participant is survived
by a spouse to whom he was married on the date he became
vested under this Plan.
XII. VESTING
Unless forfeited pursuant to Article XIII, a Participant's
benefit shall become vested -
(i) on his Normal Retirement Date; or
(ii) on the date he reaches age 55 and has at least ten
(10) Years of Credited Service with the Company; or
(iii) on the date of termination of employment due to
disability or death.
If a Participant no longer holds an Eligible Position, but
remains an employee of the Company, the Participant's service
in the Eligible Position and his resulting benefit under this
Plan shall not be forfeited.
XIII. FRAUD
In the event that a Participant shall at any time be dismissed
for, or convicted of a crime involving, dishonesty or fraud on
his part in his relationship with the Company, all benefits
which would otherwise be payable to him under the Plan shall
be forfeited.
XIV. COMPETITION
By accepting payment of any benefit under the Plan the
Participant agrees not to be employed, or consult, in any
business which is, or is about to be, engaged in a
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business of the same or substantially the same nature as the
businesses of the Company without prior written consent of the
Company, and breach of this agreement by the Participant shall
be cause for termination of payment of benefits under the
Plan.
XV. FUNDING
The Plan shall be unfunded and benefits shall be paid only
from the general assets of the Company.
XVI. ADMINISTRATION
The general administration of this Plan and the responsibility
for carrying out and interpreting the provisions hereof shall
be vested in the Compensation Committee. The Compensation
Committee may adopt such rules and regulations as it may deem
necessary for the proper administration of this Plan, which
are not inconsistent with the provisions hereof, and its
decision in all matters shall be final, conclusive and
binding.
XVII. AMENDMENT AND TERMINATION
The Board of Directors reserves in its sole and exclusive
discretion the right at any time and from time to time to
amend this Plan in any respect or terminate this Plan without
restriction and without the consent of any Participant,
provided however, that no amendment or termination of this
Plan shall impair the right of any Participant to receive
benefits which have become vested prior to such amendment or
termination and that the Plan shall not be amended or
terminated during the 24-month period beginning on the date of
a "Change in Control" (as defined in Schedule A, attached
hereto).
XVIII. CHANGE IN CONTROL
Notwithstanding the foregoing provisions of the Plan, an
individual who holds an Eligible Position and is not otherwise
a Participant under the Plan in accordance with Article V,
shall become a Participant under the Plan and become vested
under the Plan upon the date of a "Qualifying Termination" (as
defined in Schedule B, attached hereto) following a "Change in
Control" (as defined in Schedule A, attached hereto).
XIV. MISCELLANEOUS
(a) Nothing contained in this Plan guarantees the continued
employment of a Participant with the Company.
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(b) No benefit hereunder may be assigned, pledged, mortgaged
or hypothecated and, to the extent permitted by law, no such
benefit shall be subject to legal process or attachment for
the payment of any claims against any person entitled to
receive the same.
(c) If a Participant entitled to receive a benefit under this
Plan is deemed by the Compensation Committee or is adjudged by
a court of competent jurisdiction to be legally incapable of
giving valid receipt and discharge for such benefit, such
payments shall be paid to such person or persons as the
Compensation Committee shall designate or to the duly
appointed guardian or other legal representative of such
Participant. Such payment shall, to the extend made, be deemed
a complete discharge for such payments under this Plan.
(d) Payments made under this Plan shall be subject to
withholding as shall at the time be required under any income
tax or other laws, whether of the United States or any other
jurisdiction.
(e) All expenses and costs in connection with the operation of
this Plan shall be borne by the Company.
(f) The provisions of this Plan shall be construed according
to the laws of the State of Ohio.
(g) The masculine pronoun wherever used herein shall include
the feminine gender and the feminine shall include the
masculine and the singular number as used herein shall include
the plural and the plural shall include the singular unless
the context clearly indicates otherwise.
h) The titles and headings used herein are for convenience of
reference only and in case of any conflict, the text of this
Plan, rather than such titles or headings, shall be
controlling.
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SCHEDULE A
A "Change in Control" occurs if:
(a) a Person or Group other than a trustee or other fiduciary of
securities held under an employee benefit plan of the Company or any of its
subsidiaries, is or becomes a Beneficial Owner, directly or indirectly, of stock
of the Company representing 20% or more of the total voting power of the
Company's then outstanding stock and securities; provided, however, that for
purposes of this Paragraph (a), the following acquisitions shall not constitute
a Change of Control: (i) any acquisition directly from the Company, (ii) any
acquisition by the Company, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any corporation pursuant to
a transaction which complies with clause (i) of Paragraph (c) of this Schedule.
(b) individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "Incumbent Board"), cease for any reason to
constitute a majority thereof; provided, however, that any individual becoming a
director whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least 60% of the directors then
comprising the Incumbent Board shall be considered as though such individual was
a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person or Group other than the Board of Directors of the Company;
(c) there is consummated a merger, consolidation or other corporate
transaction, other than (i) a merger, consolidation or transaction that would
result in the voting securities of the Company outstanding immediately prior to
such merger, consolidation or transaction continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof) at least 66-2/3% of the combined voting
power of the stock and securities of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger, consolidation or
transaction, or (ii) a merger, consolidation or transaction effected to
implement a recapitalization of the Company (or similar transaction) in which no
Person or Group is or becomes the Beneficial Owner, directly or indirectly, of
stock and securities of the Company representing more than 20% of the combined
voting power of the Company's then outstanding stock and securities;
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(d) the sale or disposition by the Company of all or substantially all
of the Company's assets other than a sale or disposition by the Company of all
or substantially all of the assets to an entity at least 66-2/3% of the combined
voting power of the stock and securities which is owned by Persons in
substantially the same proportions as their ownership of the Company's voting
stock immediately prior to such sale; or
(e) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
"Company" shall mean Milacron Inc. "Person" shall mean any person (as defined in
Section 3(a)(9) of the Securities Exchange Act (the "Exchange Act"), as such
term is modified in Section 13(d) and 14(d) of the Exchange Act) other than (i)
any employee plan established by the Company, (ii) any affiliate (as defined in
Rule 12b-2 promulgated under the Exchange Act) of the Company, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by stockholders
of the Company in substantially the same proportions as their ownership of the
Company. "Group" shall mean any group as defined in Section 14(d)(2) of the
Exchange Act. "Beneficial Owner" shall mean beneficial owner as defined in Rule
13d-3 under the Exchange Act.
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SCHEDULE B
A "Qualifying Termination" shall mean (i) a termination of the individual's
employment by the Company for any reason other than for "Cause" or "Disability"
(as defined below) during the "Protection Period" (as defined below), or (ii)
the individual's termination of employment for "Good Reason" (as defined below)
during the Protection Period.
(a) Disability. If the individual is absent from duties with the
Company on a full-time basis for eighteen consecutive months due to a physical
or mental incapacity, and the individual has not returned to the full-time
performance of the individual's duties within thirty (30) days after written
Notice of Termination is given to the individual by the Company, such
termination shall be considered to be termination by the Company for
"Disability" for purposes of this Exhibit.
(b) Cause. The Company may terminate the individual's employment for
Cause. For purposes of this Schedule only, the Company shall have "Cause" to
terminate the individual's employment hereunder only on the basis of (i) the
individual's fraud on, or misappropriation or embezzlement of assets of, the
Company that causes material harm to the Company or (ii) the individual's
willful and continued failure to substantially perform the individual's duties
hereunder (other than any such failure resulting from the individual's mental or
physical incapacity or mental illness or any such actual or anticipated failure
after the issuance of a Notice of Termination, as defined in Paragraph (d), by
the individual for Good Reason, as defined below); provided, however, that
"Cause" shall occur with respect to clause (ii) of this sentence only if such
action constituting Cause has not been corrected or cured by the individual
within 30 days after the individual has received written notice from the Company
of the Company's intent to terminate the individual's employment for Cause and
specifying in detail the basis for such termination. For purposes of this
Paragraph, no act, or failure to act, on the individual's part shall be
considered "willful" unless done, or omitted to be done, by the individual in
bad faith and without reasonable belief that the individual's action or omission
was in the best interests of the Company. Notwithstanding the foregoing, the
individual shall not be deemed to have been terminated for Cause unless and
until delivery to the individual of a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board at a meeting of the Board called and held for the purpose (after
reasonable notice to the individual and an opportunity for the individual,
together with the individual's counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the individual was guilty of conduct
set forth in clause (i) or (ii) of this Paragraph and specifying the particulars
thereof in detail.
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(c) Good Reason. The individual shall be entitled to terminate the
individual's employment for Good Reason at any time following a Change in
Control. For purposes of this Schedule, "Good Reason" shall exist in the event
of the occurrence of any of the following without the individual's express prior
written consent:
(i) any diminution of, or the assignment to the individual of
duties inconsistent with, the individual's position, duties, responsibilities
and status with the Company immediately prior to a Change in Control, an adverse
change in the individual's titles or offices as in effect immediately prior to a
Change in Control, or any removal of the individual from, or any failure to
reelect the individual to, any of such positions, except in connection with the
individual's termination of employment for Disability or Cause or as a result of
the individual's death or by the individual other than for Good Reason;
(ii) a reduction by the Company in the individual's base
salary as in effect on the date of a Change in Control or as the same may be
increased from time to time during the term of any agreement between the Company
and the individual;
(iii) the Company's failure to continue any benefit plan or
arrangement (including, without limitation, the Company's life insurance,
post-retirement benefits, and comprehensive medical plan coverage) in which the
individual participated at the time of a Change in Control (or any other plans
providing the individual with substantially similar benefits) (hereinafter
referred to as "Benefit Plans"), or any action by the Company that would
adversely affect the individual's participation in or materially reduce the
individual's benefits under any such Benefit Plan or deprive the individual of
any material fringe benefit enjoyed by the individual at the time of a Change in
Control;
(iv) the Company's failure to continue in effect, or continue
payments under, any incentive plan or arrangement (including, without
limitation, any equity-based plan or arrangement) in which the individual
participated at the time of a Change in Control (hereinafter referred to as
"Incentive Plans") or any action by the Company that would adversely affect the
individual's participation in any such Incentive Plans or reduce the
individual's benefits under any such Incentive Plans;
(v) a relocation of the Company's principal executive offices
to a location outside the Cincinnati, Ohio metropolitan area or relocation of
the individual's primary workplace to any place other than the location at which
the individual performed the individual's duties immediately prior to a Change
in Control;
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(vi) the Company's failure to provide the individual with the
number of paid vacation days to which the individual was entitled at the time of
a Change in Control;
(vii) the Company's material breach of any provision of any
agreement between the Company and the individual regarding severance benefits
following a Change in Control;
(viii) the Company's purported termination of the individual
which is not effected pursuant to a Notice of Termination satisfying the
requirements of Paragraph (d);
(d) Notice of Termination. Any purported termination of the individual
by the Company or by the individual shall be communicated by written Notice of
Termination to the other party in accordance with Paragraph (f) hereof. For
purposes of this Schedule, a "Notice of Termination" shall mean a notice that
indicates the specific termination provision in this Schedule relied upon and
the facts, if any, supporting application of such provision.
(e) Date of Termination: Dispute Concerning Termination. "Date of
Termination" shall mean (i) if the individual's employment is terminated for
Disability, thirty (30) days after Notice of Termination is given (provided that
the individual has not returned to the performance of the individual's duties on
a full-time basis during such thirty (30) day period) or (ii) if the
individual's employment is terminated by the Company for any reason other than
Disability or by the individual for any reason, the date specified in the Notice
of Termination (which, in the case of a termination by the Company shall not be
less than thirty (30) days, and in the case of a termination by the individual
shall not be more than sixty (60) days, respectively, from the date such Notice
of Termination is given); provided, however, that if the party receiving the
Notice of Termination notifies the other party within thirty (30) days after the
date such Notice of Termination is given that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally resolved, either by mutual written agreement of the parties or by a
binding arbitration award referred to in Paragraph (g); and provided, further
that the Date of Termination shall be extended by a notice of dispute only if
such notice is given in good faith and the party giving such notice shall pursue
the resolution of such dispute with reasonable diligence. The Company shall
continue the individual as a participant in the plan until the dispute is
finally resolved in accordance with this Schedule. For purposes of determining
whether any Qualifying Termination has occurred during the Protection Period,
the date a Notice of Termination is given pursuant to this Schedule shall be
deemed the date of the individual's Qualifying Termination.
(f) Notice. For the purposes of this Schedule, notices and all other
communications provided for in the Schedule shall be in
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writing and shall be deemed to have been duly given when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid, as
follows:
(i) if, to the individual, to the individual's current address
on file with the Company;
(ii) if, to the Company, to: Milacron Inc.
4701 Marburg Avenue
Cincinnati, Ohio 45209
Attn: Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
(g) Arbitration. Any dispute or controversy arising under or in
connection with this Schedule shall be settled exclusively by arbitration in
Cincinnati, Ohio in accordance with the rules of (but not necessarily appointed
by) the American Arbitration Association then in effect except as provided
herein. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. No such arbitration proceedings shall be commenced or conducted
until at least sixty (60) days after the parties, in good faith, shall have
attempted to resolve such dispute by mutual agreement; and the parties hereby
agree to endeavor in good faith to resolve any dispute by mutual agreement. If
mutual agreement cannot be attained, any disputing party, by written notice to
the other ("Arbitration Notice") may commence arbitration proceedings. Such
arbitration shall be conducted before a panel of three arbitrators, one
appointed by each party within thirty (30) days after the date of the
Arbitration Notice, and one chosen within sixty (60) days after the date of the
Arbitration Notice by the two arbitrators appointed by the disputing parties.
Any Cincinnati, Ohio court of competent jurisdiction shall appoint any
arbitrator that has not been appointed within such time periods. Judgment may
include costs and attorneys fees and may be entered in any court of competent
jurisdiction.
(h) Definitions. For purposes of this Schedule, "Company" shall mean
Milacron Inc., "Protection Period" shall mean the 24-month period beginning on
the date of a Change in Control, and "Board" shall mean the Board of Directors
of Milacron Inc. and "Change in Control" shall have the meaning set forth in
Schedule A.
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