Exhibit 10.10
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT entered into this 19th day of July, 1989, by and
between THE GRADALL COMPANY, an Ohio corporation, with principal offices at 406
Mill Avenue, S.W., New Philadelphia, Ohio 44663 (hereinafter called the
"Company"), and BARRY L. PHILLIPS (hereinafter called the "Employee").
W I T N E S S E T H, T H A T
WHEREAS, the Employee is a key executive employee of the Company,
possessing substantial knowledge of and experience in the business of the
Company, and such knowledge and experience has, and continues to be, of great
value to the Company in the conduct of its business; and
WHEREAS, the Company desires to secure for itself the continued
services of the Employee until Employee retires, and to provide certain deferred
compensation for Employee in consideration of Employee's past and future
service;
WHEREAS, the Corporation desires to assist the Executive in paying
for life insurance on the life of the Executive; and
WHEREAS, the Corporation has determined that this assistance in
paying for life insurance can best be provided under a "split-dollar" type
arrangement;
IT IS NOW THEREFORE AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS. For purposes of this Agreement the
following terms shall be defined as set forth in this Section 1.
1.1 "RETIREMENT AGE" shall mean the date upon
which employee attains age sixty-five (65), or such later date upon which
Employee, with the consent of the Company, elects to retire after attaining age
sixty-five (65) and to remain continuously in the employ of the Company until
retirement.
1.2 "DESIGNATED BENEFICIARY" shall mean the
person or persons designated by Employee, in accordance with the provisions of
Section 6 hereof, to receive, in the event of Employee's death, any amounts
payable to Employee hereunder.
ARTICLE 2. RETIREMENT OF EMPLOYEE.
2.1 DEFERRED COMPENSATION. Upon attaining
Retirement Age, if Employee has remained continuously in the employ of the
Company, Employee shall retire, whereupon the Company shall pay Employee
annually in twelve (12) approximately equal monthly installments, for a period
of fifteen (15) years certain, a retirement benefit in the amount of
Seventy-Eight Thousand Six Hundred Eighty Seven Dollars ($78,687).
2.2 DEATH OF EMPLOYEE AFTER RETIREMENT. In
the event the Employee's death shall occur prior to the expiration of fifteen
(15) years from the date of Employee's retirement under this Section 2, the
Company shall pay the annual deferred compensation described in Section 2.1
above to Employee's Designated Beneficiary for the balance of such fifteen (15)
year period.
ARTICLE 3. DEATH OF EMPLOYEE PRIOR TO RETIREMENT.
3.1 DEATH BENEFIT. In the event of
Employee's death prior to retirement pursuant to Section 2 hereof and prior to
any earlier termination of Employee's employment with the Company, the Employee
will be entitled to receive a life insurance benefit out of the proceeds of a
life insurance policy, and, generally income tax exempt to this Employee's
beneficiary but taxable during this Employee's working years to the extent of
the annual value of his life insurance coverage under the split dollar agreement
corresponding to policy # 8167285 issued by The New England Life insurance
company (hereinafter referred to as the "Policy").
ARTICLE 4. TERMINATION OTHER THAN BY REASON OF
DEATH OR RETIREMENT.
4.1 FORFEITURE OF BENEFITS. In the event
that Employee's employment with the Company shall hereafter terminate or be
terminated for any reason, with or without cause, other than Employee's death or
retirement as set forth hereinabove, the Executive shall receive a lump sum
amount equal to the net cash surrender value of the Policy, or the right to
continue the Policy.
ARTICLE 5. DISABILITY BENEFIT.
5.1 If the Employee's employment shall be
terminated by reason of disability while in the employ of the Corporation, the
Employee shall be paid an amount equal to the net cash surrender value of the
Policy, or the right to continue the Policy.
ARTICLE 6. DESIGNATED BENEFICIARY.
6.1 APPOINTMENT OF DESIGNATED BENEFICIARY.
Upon execution of this Agreement, Employee shall designate, in a writing in form
satisfactory to the Board of Directors of the Company, and file with the
Secretary of the Company, the person, persons or entity to whom payments of the
benefits and/or deferred compensation, as set forth in Sections 2 and 3, hereof,
shall be made in the event of Employee's death. Employee shall thereafter be
free to amend, alter or change such designation, provided however, that any such
amendment, alteration or change shall be made by a writing in form satisfactory
to the Board of Directors of the Company and shall
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be filed with the Secretary of the Company.
ARTICLE 7. MISCELLANEOUS.
7.1 NO ASSIGNMENT WITHOUT CONSENT OF COMPANY.
Except as set forth herein, no rights of any kind under this Agreement shall,
without the written consent of the Company, be transferable or assignable by the
Employee, any Designated Beneficiary or any other person, or to be subject to
alienation, encumbrance, garnishment, attachment, execution or levy of any kind,
voluntary or involuntary.
This Agreement shall be binding upon and shall inure to the benefit of the
Company, its successors and assigns.
7.2 INTERPRETATION. All questions of
interpretation, construction or application arising under this Agreement shall
be decided by the Board of Directors of the Company, whose decision shall be
final and conclusive upon all persons.
7.3 SAVINGS CLAUSE. In the event
that any provision or term of this Agreement is determined by any judicial,
quasi-judicial or administrative body to be void or not enforceable for any
reason, it is agreed upon intent of the parties hereto that all other provisions
or terms of the Agreement shall be enforceable as if such void or nonenforceable
provision or term had never been a part hereof.
7.4 CHANGE OF BUSINESS FORM. The Corporation
agrees that it will not merge or consolidate with any other corporation or
organization, or permit its business activities to be taken over by any other
organization, unless and until the succeeding or continuing corporation or other
organization shall expressly assume the rights and obligations of the
Corporation herein set forth. The Corporation further agrees that it will not
cease its business activities or terminate its existence, other than as
heretofore set for in this Paragraph 7.4, without having made adequate provision
for the fulfilling of its obligations hereunder. In the event of any
default with respect to the provisions of this Paragraph 7.4, the Employee (or
other obligee or obligees) shall have transferred assets, until such default be
corrected.
7.5 GOVERNING LAW. This Agreement is
executed in and shall be construed in accordance with governed by the laws of
the State of Ohio.
7.6 EMPLOYMENT OF EMPLOYEE BY COMPANY.
Nothing herein shall be construed as an offer or commitment by the Company to
continue Employee's employment with the Company for any period of time.
ARTICLE 8. AMENDMENT OF AGREEMENT.
8.1 This Agreement may be revoked or amended
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in whole or in part by a writing signed by both of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands as of the day and year first above written.
THE GRADALL COMPANY
By: /s/ Jack D. Rutherford
-------------------------
/s/ Barry L. Phillips
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BARRY L. PHILLIPS
"EMPLOYEE"
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