BURKE INDUSTRIES, INC.
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, made and entered into as of this 30th day of November
1995, by and between Burke Industries, Inc., a California corporation, with
principal offices and place of business 2250 South Tenth Street, San Jose, CA
95112 (hereinafter referred to as the "Corporation" or the "Employer"), and
that executive employee indicated on the signature page hereto, an individual
residing in the State of California (hereinafter referred to as the
"Employee").
WITNESSETH THAT:
WHEREAS, the Employee is employed by the Corporation, and has been selected
by the Corporation for participation in this plan; and
WHEREAS, the Corporation recognizes the valuable services heretofore
performed for it by the Employee and wishes to encourage Employee's continued
employment; and
WHEREAS, the Employee wishes to defer a certain portion of compensation
payable to him; and the Employer may from time to time determine by Board of
Directors resolution make supplemental contributions to the retirement account
established hereunder,
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Corporation shall pay such deferred compensation to the Employee or
his designated beneficiary; and
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement maintained primarily to provide deferred compensation
benefits for the Employee, a member of a select group of management or highly
compensated employees of the Corporation for purposes of the Employee Retirement
Income Security Act of 1974, as amended.
NOW THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. DEFINITION OF TERMS. Certain words and phrases are defined when
first used in later paragraphs of this Agreement. In addition, the
following words and phrases when used herein, unless the context
clearly requires otherwise, shall have the following respective
meanings:
(a) Accrued Benefit. The sum of all Deferred Amounts, including
Employee Deferrals and Supplemental Deferrals (subject to any
vesting schedule), credited to the Employee's Retirement
Account and due and owing to the Employee or his designated
beneficiaries pursuant to this Agreement, together with
Additions thereto calculated as set forth in paragraph 3,
hereof, minus any distributions made hereunder.
(b) Affiliate. Any corporation, partnership, joint venture,
association, or similar organization or entity, the employees
of which would be treated as employed by the Corporation under
Section 414(b) or 414(c) of the Code.
(c) Agreement. This Agreement, together with any amendments or
supplements thereto.
(d) Code. The Internal Revenue Code of 1986, as amended or as it
may be amended from time to time.
(e) Compensation. Total salary and commissions of the Employee
paid or accrued by the Corporation, excluding any bonus,
commissions, Accrued Benefits, stock options, stock
appreciation rights, or any employer contributions or payments
to any trust fund, agreement or plan providing retirement,
pension, profit sharing, health, welfare, death, insurance or
similar benefits.
(f) Early Retirement Date. The date the Employee attains the age
of fifty-five (55). The date upon which the Employee attains
the age of sixty-five (65) shall be referred to as the Normal
Retirement Date.
(g) Effective Date. December 1, 1995.
(h) Election of Deferral. A written notice filed by the Employee
with the chief financial officer or controller of the
Corporation in substantially the form attached hereto as
Exhibit A, specifying the amount of Compensation to be
deferred.
(i) Fiscal Year. The taxable year of the Corporation.
(j) Normal Retirement Date. The date the Employee attains the age
of sixty-five (65). The date upon which the Employee attains
the age of fifty-five (55) shall be referred to as the Early
Retirement Date.
(k) Notice of Discontinuance. A written notice filed by the
Employee with the chief financial officer or controller of the
Corporation in substantially the form attached hereto as
Exhibit D, requesting discontinuance of the deferral of the
Employee's Compensation.
(l) Plan Year. The administrative accounting year of the deferred
compensation program established under administrative policies
established by the Employer for the administration of the
obligations under the terms of this Agreement, which shall be
the calendar year or a portion thereof in the initial or final
year of the Agreement.
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(m) Qualified Plan. The pension or profit sharing plan qualified
under section 401 of the Internal Revenue Code, more
specifically described at Exhibit E, attached hereto.
(n) Retirement Account. Book entries maintained by the
Corporation reflecting the Accrued benefit, including Employee
Deferrals, Supplemental Deferrals and Additions thereon,
subject to any vesting schedule applicable to Supplemental
Deferrals described herein; provided, however, that the
existence of such book entries and the Retirement Account
shall not create and shall not be deemed to create a trust of
any kind, or a fiduciary relationship between the Corporation
and the Employee, his designated beneficiaries or other
beneficiaries under this Agreement.
(o) Survivor Benefit. The Survivor Benefit shall be the greater
of: (a) the amount set forth at Schedule 1, attached hereto,
which may be updated from time to time by the Corporation,
minus any distributions made hereunder, or (b) the Accrued
Benefit.
In either (a) the absence of any amount set forth at Schedule
1, or (b) in the event that the Employee's death is the result
of suicide occurring within three years of the date of this
Agreement, then the Survivor Benefit shall be equal to the
Accrued Benefit.
2. DEFERRED COMPENSATION.
a. Employee Deferrals.
Commencing on the Effective Date, and continuing through the date on which the
Employee's employment terminates because of his death, retirement, disability,
or any other cause, the Employee and the Corporation agree that the Employee
shall defer into his Retirement Account the amount set forth in the Election of
Deferral, which the Employee would otherwise be entitled to receive from the
Corporation in each Fiscal Year of the Corporation.
The amount selected for deferral by the Employee pursuant to an Election of
Deferral is referred to as the "Annual Deferral Sum." The amounts of
compensation actually deferred, taking into account discontinuance of deferral
pursuant to a Notice of Discontinuance, are hereinafter collectively referred to
as the "Deferred Amounts." The Employee's Deferred Amounts shall be credited to
the Employee's Retirement Account as of the dates such Deferred Amounts would,
but for such deferral, be payable to the Employee.
3. ADDITIONS TO DEFERRED AMOUNTS. The Corporation agrees that it will credit
Deferred Amounts in the Employee's Retirement Account with additions
thereon ("Additions") from and after dates Deferred Amounts are credited to
the Retirement Account. Additions to Deferred Amounts shall accrue
commencing on the date the Retirement Account first has a positive balance
and shall continue up to the date that the
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Retirement Account has been reduced to zero. Additions shall be calculated
as an amount (the "As If Rate") equal to the yield that would be realized,
including any dividends, interest, or other current yield, as well as any
capital gain or loss based on an adjustment to fair market value on any
date of calculation, as if hypothetically invested in whole or fractional
shares in the assets set forth at Schedule 2 (the Calculation Assets),
which may be changed at the sole discretion of the Employer, from time to
time. The Employer shall have no obligation to actually acquire any of
the Calculation Assets set forth at Schedule 2, and such return shall be
only for purposes of calculating Additions to Deferred Amounts hereunder.
The Employee shall have no rights in or to any Calculation Assets set forth
at Schedule 2, as provided elsewhere in this Agreement. The As If Rate
shall be adjusted on the last day of each fiscal quarter the plan year at
the mean trading price of the Calculation Assets on such date or the first
business date thereafter, as quoted in Barrons financial news publication,
or in the absence of a quotation therein, in a similar publication or other
authoritative valuation of the specified Calculation Assets. Any such
designation of new Calculation Assets by the Employer must be in writing.
For purposes of calculating Additions, it shall be assumed that the
Calculation Assets is sold and the alternate Calculation Assets is
purchased on the first business day following such revised designation by
the Corporation.
4. ELECTION TO DEFER COMPENSATION. The Employee may elect an Annual Deferral
Sum hereunder by filing an Election of Deferral. The initial Election of
Deferral must be filed within twenty (20) days of the Effective Date of
this Agreement. Such initial Election of Deferral, if any, shall be
effective commencing with the first day of the month after it is filed.
Thereafter, an Election of Deferral must be filed at least twenty (20) days
prior to the beginning of the Plan Year to which it pertains and shall be
effective on the first day of the Plan Year following the filing thereof.
The maximum amount of the Annual Deferral Sum shall be an amount equal to
the maximum amount that can be deferred under section 402(g), which limits
deferrals under qualified cash or deferred arrangement, which amount is
equal to $7000 adjusted annually so that for 1995 the limitation hereunder,
for example, is $9240. The minimum deferral shall be One Thousand Dollars
($1,000).
5. TERMINATION OF ELECTION. The Employee's initial Election of Deferral shall
continue in effect, pursuant to the terms of the Election of Deferral,
unless and until the Employee files with the Corporation a Notice of
Discontinuance or a subsequent Election of Deferral specifying a different
amount of deferral. Each Election of Deferral filed subsequent to the
initial Election of Deferral shall similarly continue in effect until the
Employee files a Notice of Discontinuance or a new Election of Deferral.
Any new Election of Deferral, to be effective, must be filed at least
twenty (20) days prior to the beginning of the Plan Year in which deferral
is sought. A notice of Discontinuance shall be effective if filed at least
twenty (20) days prior to any 1st day of the first month, 1st day of the
fourth month, 1st day of the seventh month, or 1st day of the tenth month
of the Plan Year. Such Notice of Discontinuance shall be effective
commencing with the 1st day of the first month, 1st day of the fourth
month, 1st day of the seventh month, or 1st day of the tenth month of the
Plan Year following its filing, whichever applies, and
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shall apply only with respect to the Employee's Compensation attributable
to services not yet performed.
6. (a) RETIREMENT BENEFIT. The Corporation agrees that, from and
after the retirement of the Employee from the service of the
Corporation upon reaching his Early Retirement Date or Normal
Retirement Date, the Corporation shall thereafter pay as a
retirement benefit ("Retirement Benefit") to the Employee the
Employee's entire Accrued Benefit in equal monthly installments for
one hundred twenty (120) consecutive months, commencing on the
first day of the second calendar month immediately following the
Employee's retirement; provided, however, that the Employee may, at
his sole option make one election prior to the time benefit payments
begin to receive the Accrued Benefit in his Retirement Account in
equal monthly installment payments over a shorter period, to be
designated by him in writing, than would otherwise apply, or in a
single payment. The election referred to in the preceding sentence
must be made at least on hundred eighty (180) days prior to the date
benefit payments begin and shall be irrevocable. In the event of
such election by the Employee, the first designated monthly payment
or the single payment, whichever applies, shall be due and payable
on the first day of the second month following the Employee's filing
of an effective written election to accelerate benefits. Monthly
installment payments, if applicable, shall continue monthly
thereafter, for the period designated by the Employee.
(b) ELECTION OF BENEFITS UPON RETIREMENT DATE. The Employee shall have
the option, upon attaining his Early Retirement Date or Normal
Retirement Date, to elect to receive his Retirement Benefit,
notwithstanding his continued employment with the Corporation after
he has attained his Early Retirement Date or Normal Retirement Date.
The Employee's election to receive his Retirement Benefit
notwithstanding his continued employment must be made in writing at
least sixty (60) days prior to his Early Retirement Date or Normal
Retirement Date, whichever applies. The Retirement Benefit payable
upon election pursuant to this paragraph 6.b. shall be the amount
that would have been payable had the Employee retired from service
with the Corporation as of his Early Retirement Date or Normal
Retirement Date, whichever applies. Any such election shall be
irrevocable, and shall result in the termination of the Employee's
right to any further deferrals hereunder.
7. DISABILITY RETIREMENT. Notwithstanding any other provision hereof, the
Employee shall be entitled to receive payments hereunder prior to his Early
Retirement Date or Normal Retirement Date, whichever applies, in any case
in which it is determined by a duly licensed physician selected by the
Corporation that, because of ill health, accident, disability or general
inability because of age, the Employee is no longer able, properly and
satisfactorily, to perform his regular duties as an Employee. In the event
that the Employee's employment is terminated, then, pursuant to this
paragraph 7, the disability retirement benefit payable hereunder
("Disability Retirement Benefit") shall be
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that amount that would have been payable as a Retirement Benefit had the
Employee attained his Normal Retirement Date on the date of the physician's
disability determination. The Disability Retirement Benefit payable under
this paragraph 7 shall be distributed in accordance with the provisions of
paragraph 6.a. as if the Employee had retired on the date of the
physician's disability determination.
8. (a) DEATH BENEFIT PRIOR TO COMMENCEMENT OF RETIREMENT BENEFITS.
In the event of the Employee's death while in the employment of the
Corporation and prior to commencement of the Retirement Benefits or
Disability Retirement Benefits, the Corporation shall pay as a
survivor's benefit the Employee's entire Survivor Benefit in a
single lump sum to the Employee's designated beneficiary (the
"Beneficiary"), in accordance with the last such designation
received by the Corporation from the Employee prior to death. If no
such designation has been received by the Corporation from the
Employee prior to death or if said payment is not otherwise to be
made as provided herein, said payment shall be made to the
Employee's then living spouse, so long as such surviving spouse
shall live and thereafter to such person or persons, including the
estate of the spouse, as the spouse may appoint by Will, making
specific reference hereto; if the Employee is not survived by a
spouse or if the spouse shall fail to do so appoint, then said
payment shall be made to the then living children of the Employee,
if any, in equal shares, for their joint and survivor lives; and if
none or after their respective joint and survivor lives, in one lump
sum to the estate of the Employee. Such payment shall commence on
the first day of the second month following the Employee's death.
(b) DEATH BENEFIT AFTER COMMENCEMENT OF BENEFITS. In the event of the
Employee's death after commencement of Retirement benefits, Normal
Retirement Benefits, or Disability Retirement Benefits, but prior to
the completion of all such payments due and owing hereunder, the
Corporation shall pay the balance of the Accrued Benefit in a single
lump sum the Employee's designated beneficiary, in accordance with
the last such designation received by the Corporation form the
Employee prior to his death. If no such designation has been
received by the Corporation from the Employee prior to his death or
if said payments are not otherwise to be made as provided herein,
said payments shall be made to the Employee's then living spouse, so
long as she shall live and thereafter to such person or persons,
including his estate, as he may appoint under his Will, or other
testamentary instrument, making specific referenced hereto; if the
Employee is not survived by a spouse or if he shall fail to so
appoint, then said payments shall be made to the then living
children of the Employee, if any, in equal shares, for their joint
and survivor lives; and if none or after their respective joint and
survivor lives, any balance thereof in one lump sum to the estate of
the Employee. Such payments shall commence on the first day of the
first month following the Employee's death. At its sole option, the
Corporation may pay the Employee's entire Accrued Benefit as a
single lump sum.
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9. TERMINATION BENEFIT. In the event the Employee's termination of employment
with the Corporation before his Early Retirement Date or Normal Retirement
Date for any reason, other than disability, retirement or death, the
Corporation shall pay to the Employee, as compensation for services
rendered prior to such termination, a single sum equal to the total
Deferred Amounts hereunder, including any Additions thereto (the
"Termination Benefit"), subject to the vesting schedule described at
paragraph 2 above. The Termination Benefit shall be payable on the first
day of the second month following the termination of the Employee's
employment with the Corporation.
10. HARDSHIP WITHDRAWAL. In the event the Employee suffers from unforeseen
financial emergency, as defined hereafter, the Corporation may, if it deems
advisable in its sole and absolute discretion, distribute to or utilize on
behalf of the Employee as a hardship benefit (the "Hardship Benefit") any
portion of the Employee's Retirement Account. The Corporation shall have
exclusive authority to determine whether to make a hardship distribution,
and the Corporation's decision shall be final and binding on all parties.
Any hardship distribution shall, like all distributions, reduce the amounts
available for subsequent distributions and be deducted from the Retirement
Account. The Employee shall apply for such a Hardship Benefit in writing
in a form approved by the Corporation and shall provide such additional
information as the Corporation shall require. For purposes of this
Paragraph, "unforeseen financial emergency" means an immediate and heavy
financial need caused by an unforeseeable emergency, as described in
Treasury Regulations Section 1.457-2(h) (4) and (5), resulting from any of
the following, and in an amount not in excess of the amount needed to pay
for the following unreimbursed expenses:
a. expenses which are not covered by insurance and which the Employee
or his or her spouse or dependents (as defined in Code Section
152(a)) has incurred as a result of, or is required to incur in
order to receive, medical care described in Code Section 213(d), as
a result of a sudden or unexpected illness;
b. loss of an employee's property as a result of casualty, or,
c. other similar extraordinary, unforeseeable circumstances
attributable to forces beyond the Employee's control.
No distribution shall be made pursuant to this paragraph in excess
of the amount of the immediate and heavy financial need of the
Participant. The amount of the immediate and heavy financial need
may include any amounts necessary to pay federal, state or local
11. QUALIFIED PLAN ELECTION. As soon as practicable each Plan Year of the
Qualified Plan and not later than January 31 of the next ensuing year, the
Employer shall perform a preliminary actual deferral percentage and actual
contribution percentage testing to determine the maximum amount of
additional elective contributions that could be made to the Qualified Plan
for the current Plan Year, consistent with Code section 402(g) and the
limitations of section 401(k)(3), on behalf of Employee as a participant in
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the Qualified Plan. The lesser of those amounts, or the Employee's salary
deferral for the Plan Year as set forth at the Deferral Election Form at
Exhibit A for the Plan Year, will be paid to the Employee as soon as
practicable, but in no event later than March 15 of the Plan Year following
the Plan Year for which such determination is made, unless the Employee
previously elected to have such amount contributed to the Qualified Plan as
an elective contribution. The Employee's election to have such amount
contributed to the Qualified Plan must be made at the same time as the
Election of Deferral under this Agreement, which must in no event be later
than the December 31 of the calendar year in which the compensation to
which the salary deferral relates is earned and, once made, the election
shall be irrevocable. If the Employee so elects, the Employer shall cause
the elected amount to be contributed directly to the Qualified Plan in
accordance with this paragraph. In no event will any earnings under this
Plan be credited to the Qualified Plan.
12. BENEFICIARY DESIGNATION. The Employee shall have the right, at any time to
submit in substantially the form attached hereto as Exhibit B, a written
designation of primary and secondary beneficiaries to whom payment under
this Agreement shall be made in the event of his death prior to complete
distribution of the benefits due and payable under the Agreement. Each
beneficiary designation shall become effective only when receipt thereof is
acknowledged in writing by the Corporation.
13. DETERMINATION OF BENEFITS.
a. Claim
A person who believes that he is being denied a benefit under the Plan
(hereinafter referred to as a "Claimant") may file a written request for
such benefit with the Corporation, setting forth his claim. The request
must be addressed to the Treasurer of the Corporation at its then principal
place of business.
b. Claim Decision.
Upon receipt of a claim, the Corporation shall advise the Claimant that a
reply will be forthcoming within ninety (90) days and shall, in fact,
deliver such reply within such period. The Corporation may, however,
extend the reply period for an additional ninety (90) days for reasonable
cause.
If the claim is wholly or partially denied, the Corporation shall provide a
written notice within ninety (90) days specifying the reason for the
denial, the plan provisions on which the denial is based, and additional
material or information necessary to receive benefits, if any, and why such
material or information is necessary. Also, such written notice shall
indicate the steps to be taken if a review of the denial is desired.
c. Request for Review.
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If a claim is denied and a review is desired, the Employee (or designated
beneficiary in the case of the Employee's death) shall notify the
Corporation in writing within sixty (60) days after receipt of a written
notice of a denial of a claim. In requesting a review the Employee may,
but need not, review the pertinent documents and submit issues and comments
in writing for consideration of the corporation and refer to plan
documents.
d. Review of Decision.
The Corporation shall then review the claim and provide a written decision
within sixty (60) days of receipt of a request for review. This decision
shall state the specific reasons for the decision and shall include
references to specific provisions on which the decision is based. If
special circumstances require that the sixty (60) day time period be
extended, the Corporation will so notify the Claimant and will render the
decision as soon as possible, but no later than one hundred twenty (120)
days after receipt of the request for review.
14. BENEFITS NOT TRANSFERABLE. Neither the Employee nor any designated
beneficiary shall have any right to transfer, assign, anticipate,
hypothecate or otherwise encumber any part or all of the amounts payable
hereunder. No such amounts shall be subject to seizure by any creditor of
such beneficiary, by a proceeding in law or equity, nor shall such amounts
be transferable by operation of law in the event of bankruptcy, insolvency
or death of the Employee, his designated beneficiary, or any other
beneficiary hereunder. Any such attempted transfer shall be void.
15. NO CONTRACT OF EMPLOYMENT. Nothing contained herein shall be construed to
be a contract of employment for any term of years, not as conferring upon
the Employee the right to continue to be employed by the Corporation, in
any capacity. It is expressly understood by the parties hereto that this
Agreement relates exclusively to deferral of otherwise currently payable
compensation for the Employee's services; such deferral to be payable after
termination of Employee's employment with the Corporation, or as otherwise
provided. This Agreement is not intended to be an employment contract.
16. CONSTRUCTION OF AGREEMENT. Any payments under this Agreement shall be
independent of, and in addition to, those under any other plan, program, or
agreement which may be in effect between the parties hereto, or any other
compensation payable to the Employee or the Employee's designated
beneficiary by the Corporation.
17. NO TRUST CREATED. Nothing contained in this Agreement, and no action taken
pursuant to its provisions by either party hereto, shall crate nor be
construed to create, a trust or any kind of a fiduciary relationship
between the Corporation and the Employee, the Employee's designated
beneficiary, any other beneficiary of the Employee or any other person.
18. BENEFITS PAYABLE ONLY FROM GENERAL CORPORATE ASSETS; UNSECURED GENERAL
CREDITORS STATUS OF EMPLOYEE. The payments to the Employee, the Employee's
designated beneficiary or any other beneficiary hereunder
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shall be made from assets which shall continue, for all purposes, to be a
part of the general, unrestricted assets of the Corporation; no person
shall have nor acquire any interest in any such assets by virtue of the
provisions of this Agreement. The Corporation's obligation hereunder shall
be an unfunded and unsecured promise to pay money in the future. To the
extent that the Employee or any person acquires a right to receive payments
from the Corporation under the provisions hereof, such right shall be no
greater than the right of any unsecured general creditor of the
Corporation, no such person shall have nor require any legal or equitable
right, interest or claim in or to any property or assets of the
Corporation.
In the event that, in its sole discretion, the Corporation purchases an
insurance policy or policies insuring the life of the Employee (or any
other property) to allow the Corporation to recover the cost of providing
the benefits, in whole, or in part, hereunder, neither the Employee, the
Employee's designated beneficiary, any other beneficiary nor any other
person shall have nor acquire any rights whatsoever therein or in the
proceeds therefrom. The Corporation shall be the sole owner and
beneficiary of any such policy or policies and, as such, shall possess and,
may exercise all incidents of ownership therein. No such policy, policies
or other property shall be held in any trust for the Employee or any other
person nor as collateral security for any obligation of the Corporation
hereunder.
19. AMENDMENT. This Agreement may not be altered, amended, or revoked except
by a written agreement signed by the Corporation and Employee.
20. INTERPRETATION. Where appropriate in this Agreement, words used in the
singular shall include the plural and words used in the masculine shall
include the feminine.
21. ARBITRATION. All disputes, controversies or differences arising out of, or
in relation to or in connection with this Agreement, which cannot be
settled by discussion and mutual accord, shall be resolved exclusively
by binding arbitration in the country in which the principal office of
the Employer is located in accordance with the then prevailing
Commercial Arbitration Rules of the American Arbitration Association.
Demand for arbitration shall be made in writing and shall be served upon
the party or parties to whom the demand is addressed in the manner
provided at paragraph 22 below. If the parties are unable to mutually
agree on an arbitrator within twenty (20) days after delivery of the
request for arbitration, each shall have the right to petition an
appropriate court that would have jurisdiction over this matter in the
country in which the principle office of the Employer is located, to
appoint an arbitrator with experience in manners of executive
compensation law and business practice. Unless otherwise agreed in
writing by the parties, they shall make their initial submissions to the
arbitrator(s) and the arbitration hearing shall commence within thirty
(30) days of the agreement on or appointment of the arbitrator. The
arbitration hearing shall be completed within thirty (30) days
thereafter. The award shall be made promptly by the arbitrator(s) and,
unless otherwise agreed by the parties, no later than thirty (30) days
after the completion of the hearing; provided however, that any failure
to render the award within such time shall not affect the validity of
such award. The award rendered by the arbitrator(s) shall set forth
his/her findings of the facts and conclusions of law and shall be final,
and judgment upon the award rendered may be entered in
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any court having jurisdiction or application may be made to such court
for a judicial acceptance of the award and an order of enforcement, as
the case may be. In that regard, each of the parties to this Agreement
hereby submits to the jurisdiction of the courts of the State of
California, and to the federal courts of the United States of America
located in the county in which the principle office of the Employer is
located.
22. TERMINATION OF PLAN. The Employer may at any time during the term of this
Agreement, file a Notice of Termination with the Employee thereby
terminating this Plan as of the first day of the subsequent month. If the
Employer elects to terminate this Agreement, the Employee shall be entitled
to receive the amounts computed as provided in Section (9) hereinabove,
provided however, that in the event of a termination of the Plan by the
Employer, there shall be no reduction of the Retirement Account as a result
of any vesting schedule otherwise applicable to Supplemental Deferrals.
23. OFFSET FOR OBLIGATIONS TO CORPORATION. If, at such time as the Employee
becomes entitled to benefit payments hereunder, the Employee has any debt,
obligation or other liability representing and amount owing to the
corporation or an affiliate of the corporation, and if such debt,
obligation or other liability is due and owning at the time benefit
payments are payable hereunder, the corporation may offset the amount
owning it or an affiliate against the amount of benefits otherwise
distributable hereunder.
24. MISCELLANEOUS.
(a) The law of the State of California shall govern this Agreement.
(b) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall
constitute one instrument.
(c) To the extent that any of the provisions of this Agreement are found
by a court of competent jurisdiction to be invalid, illegal, or
unenforceable for any reason, such provision shall be modified or
deleted in such a manner so as to make the Agreement as modified
valid, legal and enforceable, and the balance of the Agreement shall
not be affected thereby.
(d) Any notice required or permitted hereunder shall be given to the
appropriate party at the address specified beneath such party's
signature below or at such other address as the party may hereafter
specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address, three business days after the
date of mailing sent by certified or registered mail, or one
business day after the date of deposit with Federal Express or
similar overnight courier.
(e) If any arbitration, action or proceeding is commenced to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled
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to its reasonable attorney's fees, costs and expenses from
the other party in addition to any other relief to which such
prevailing party may be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first hereinabove written.
BURKE INDUSTRIES, INCORPORATED
/s/ Rocky Genovese
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Rocky Genovese
Its: President
2250 South Tenth Street
San Jose, CA 95112
WITNESS
/s/ Anne Howe
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Anne Howe
225 South 10th Street
San Jose, CA 95112
EMPLOYEE
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Address:
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BURKE INDUSTRIES, INC.
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
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Schedule 1 - Survivor Benefit
Initial Survivor Benefit _________________
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Date of Revision Revised Amount & Signature Authority
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BURKE INDUSTRIES, INC.
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
Schedule 2, Calculation Assets
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The Corporation agrees that it will credit Deferred Amounts in the Employee's
Retirement Account with additions from and after dates Deferred Amounts are
credited to the Retirement Account at the "As If" rate specified in the
Agreement. In determining the "As If" calculation under the agreement the
Company will utilize the following Calculation Assets, which may be revised
in writing from time to time, at the discretion of the Company.
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FUND Percentage
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Large Cap Growth, Cohen Klingenstein & Marks %
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International Equity, GAM Co. %
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Balanced, The Crabble Huson Group %
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Index, State Street %
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Stable Asset, Morley Capital %
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Guaranteed Index %
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Fidelity Equity Retail Growth %
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%
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Burke Industries, Inc.
/s/ Rocky Genovese
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Rocky Genovese
Date:
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14
BURKE INDUSTRIES, INC.
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
Exhibit E
Qualified Plan Designation
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Date of Plan Description
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15