Indiana | 0-3279 | 35-0514506 | ||
(State or other jurisdiction of | (Commission File | (IRS Employer Identification No.) | ||
incorporation) | Number) |
1600 Royal Street, Jasper, Indiana | 47549-1001 | |
(Address of principal executive offices) | (Zip Code) |
Not Applicable |
(Former name or former address, if changed since last report) |
• | An annual base salary of $800,000. |
• | Ms. Juster will be eligible to participate in the Company’s Annual Cash Incentive Plan (the “ACI Plan”), with a target annual incentive of 80% of her base salary. For fiscal year 2019, cash incentive awards will be earned under the ACI Plan based on the Company’s adjusted pre-tax income during fiscal year 2019. For fiscal years 2019 and 2020, Ms. Juster is guaranteed a minimum payout under the ACI Plan of 50% of her base salary. The maximum payout that Ms. Juster may earn under the ACI Plan is 120% of her base salary. Any amounts earned under the ACI Plan are paid during the following fiscal year in two cash installments - 50% in August and 50% in December. |
• | Because the first payment under the ACI Plan will not be received by Ms. Juster until August 2019, Ms. Juster will also receive the following payments intended to serve as a transition into the ACI Plan, provided that she is employed by the Company on the applicable payment date: $106,000 payable in December 2018, $320,000 payable in June 2019, and $107,000 payable in both August 2019 and December 2019. |
• | The Company will also grant Ms. Juster the following equity awards on November 1, 2018, upon her commencement of employment as the Company’s Chief Executive Officer, which awards will be granted under, and subject to the terms and conditions of, the Kimball International, Inc. 2017 Stock Incentive Plan (the “2017 Stock Plan”): |
◦ | Annual Performance Share (“APS”) awards with a total target value of $386,667, which will be earned based on the Company’s consolidated return on capital for fiscal year 2019 and will have such other terms as set forth in the form of APS award agreement attached hereto as Exhibit 10.1 and incorporated herein by reference. |
◦ | A Restricted Stock Unit (“RSU”) award valued at $166,167, which will vest in full on June 30, 2019, an RSU award valued at $250,000, which will vest in full on June 30, 2020, and an RSU |
◦ | A Relative Total Shareowner Return (“RTSR”) award with a target value of $500,000, which will be earned based on the Company’s RTSR for a performance cycle ending on June 30, 2020, and an RTSR award with a target value of $500,000, which will be earned based on the Company’s RTSR for a performance cycle ending on June 30, 2021. Each of the RTSR awards will have such other terms as set forth in the form of RTSR award agreement attached hereto as Exhibit 10.3 and incorporated herein by reference. |
◦ | A one-time sign-on RSU award valued at $1,500,000, which will vest in full on June 30, 2021 and will have such other terms as set forth in the form of RSU award agreement attached hereto as Exhibit 10.2. |
• | For purposes of both the ACI Plan and the equity awards granted to Ms. Juster, “retirement” includes any termination of her employment, other than for cause, occurring at or after she has reached the age of 55 and has a combination of age plus years of continuous service as an executive officer of the Company equal to or greater than 65. |
• | Ms. Juster will be eligible to participate in all benefit and retirement plans generally provided to other executive employees of the Company, including the 401(k) Retirement Plan, the Supplemental Retirement Plan (the “SERP”) and the executive preventative healthcare program. |
• | Ms. Juster will be reimbursed for realtor and closing costs in connection with her relocation in an aggregate amount not to exceed $250,000, as well as moving expenses. The Company will also pay temporary housing and rental car costs incurred by Ms. Juster during her relocation but until no later than June 30, 2019. |
• | Expanded eligibility to the ACI Plan to include employees who are employed in a hybrid leadership role and oversee both employees that are eligible to participate in the ACI Plan and those that are ineligible to participate in the ACI Plan. |
• | Increased the maximum payout under the ACI Plan to 120% of base salary for the Chief Executive Officer of the Company. |
• | Removed the $1 million limit on a participant’s total cash incentive payout. |
• | Provides the Compensation and Governance Committee with the sole authority to approve future changes to the ACI Plan. |
• | Added language that allows the ACI Plan’s definition of “retirement” to be overridden by specific language in a written agreement signed by both the employee and an authorized executive officer of the Company or member of the Board. |
Exhibit | ||
Number | Description | |
10.1 | ||
10.2 | ||
10.3 | ||
10.4 | ||
10.5 | ||
99.1 |
KIMBALL INTERNATIONAL, INC. | |
By: | /s/ Michelle R. Schroeder |
MICHELLE R. SCHROEDER Vice President, Chief Financial Officer |
1. | GRANT OF PERFORMANCE SHARES |
2. | DETERMINATION OF SHARES ISSUED |
Return on Capital | Actual Shares to be Issued for FY 2019 |
42% | 200% of Target Shares |
37% | 100% of Target Shares |
26% | 50% of Target Shares |
<26% | 0 |
3. | ELIGIBILITY CONDITIONS |
A. | To receive Shares earned under this Award Agreement as determined by the Committee, the Employee must have remained in Continuous Service as an executive officer from the date hereof to June 30, 2019 (the “Vesting Date”), except as provided in subsection (C) below. |
B. | If the Employee ceases Continuous Service before the Vesting Date for any reason other than Disability, death or CEO Retirement (as defined below), the Employee will forfeit all rights with respect to any Shares under this Award Agreement. |
C. | Disability, Death or CEO Retirement. As permitted by Section 6(d)(ii) of the Plan, the following (and not the provisions of Section 6(d)(ii)(A) of the Plan) shall govern if the Employee ceases Continuous Service prior to the Vesting Date by reason of Disability, death or CEO Retirement: |
(i) | If the Employee ceases Continuous Service before the Vesting Date because of Disability or CEO Retirement, the number of Shares to which the Employee may be entitled under this Award Agreement, if any, will be determined on the Determination Date based on the Company’s performance for the fiscal year ended June 30, 2019, but shall be prorated to reflect the portion of the fiscal year that the Employee worked prior to such Disability or CEO Retirement. Except as provided in Section 10, the Shares shall be issued no later than sixty (60) days following the end of the fiscal year. |
(a) | For purposes of this Award Agreement, “CEO Retirement” shall mean any termination of the Employee’s Continuous Service, other than for Cause, occurring at or after the Employee has attained the minimum retirement age under the governmental retirement system for the applicable country (age 62 in the United States), or at or after the Employee has reached the age of 55 and has a combination of age plus years of Continuous Service as an executive officer of the Company equal to or greater than 65. |
(b) | To be considered a CEO Retirement under this Award Agreement, the Employee must comply with the process for approval of CEO Retirement established by the Company and must have incurred a Separation of Service, as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). “Separation from Service” shall mean a ”separation from service” within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury regulation section 1.409A-1(h) and shall mean with respect to an Employee, the complete termination of the employment relationship between the Employee and the Company and/or all affiliated employers within the meaning of Code Section 414(b) or (c), for any reason other than death. |
(c) | Shares will be prorated by multiplying the Shares determined to be earned for the fiscal year by a fraction determined by: |
• | Numerator = number of months from the Award Date to the end of the fiscal year that the Employee maintained Continuous Service as an executive officer of the Company, including the month in which the Continuous Service ceased, which shall be considered a full month. |
• | Denominator = total number of months from the Award Date to the Determination Date. |
(ii) | If the Employee ceases Continuous Service before the Vesting Date by reason of the Employee’s death, the number of Shares earned by the Employee shall equal the Target Shares, pro rated to reflect the portion of the fiscal year that the Employee worked prior to her death, using the fraction described in (i)(c) above. Except as provided in Section 10 below, such earned Shares shall be paid within thirty (30) days following the date of the Employee’s death. |
D. | Notwithstanding anything to the contrary set forth in the Plan or this Award Agreement, the Employee shall forfeit any Performance Shares awarded hereunder in the event that: |
(i) | The Employee is discharged by the Company from her employment with the Company for Cause. For purposes herein, “Cause” shall mean, with respect to termination of the Employee’s employment with the Company, one or more of the following occurrences: (1) Employee’s willful and continued failure to perform substantially the duties or responsibilities of Employee’s position (other than by reason of Disability) or the willful and continued failure to follow lawful instructions of a senior executive or the Board of Directors, if such failure continues for a period of five days after the Company delivers to Employee a written notice identifying such failure; (2) Employee’s conviction of a felony or of another crime that reflects in a materially adverse manner on the Company in its markets or business operations; (3) Employee’s engaging in fraudulent or dishonest conduct, gross misconduct that is injurious to the Company, or any misconduct that involves moral turpitude; or (4) Employee’s failure to uphold a fiduciary duty to the Company or its shareholders; or |
(ii) | The Employee breaches any of her employee and ancillary agreements, including without limitation, any confidentiality or non-solicitation obligation documented by agreement (collectively, “Employee Agreement”). In addition, for purposes herein, an Employee shall be deemed to have breached an Employee Agreement if the Employee seeks judicial intervention to limit or nullify the terms of such Employee Agreement. |
E. | In the event that Shares are earned by and issued to the Employee under this Award Agreement and within twelve (12) months after the issuance of such Shares to the Employee, (a) the Company identifies facts that result in, or, in the event of issuance of such Shares as a result of CEO Retirement or Disability, would have resulted in, a termination for Cause, or (b) the Employee breaches an Employee Agreement, then, in addition to the forfeiture under Section 3.D. of this Award Agreement, the Employee agrees to repay the value of such Shares received under this Award Agreement within thirty (30) days of the date of written demand by the Company (“Clawback Amount”). |
F. | Awards and any compensation or benefits associated therewith shall also be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 10D of the Exchange Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder; (ii) similar rules under the laws of any other jurisdiction; and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to a Participant. This Award Agreement may be unilaterally amended by the Committee to comply with any such compensation recovery policy. |
4. | CHANGES IN CAPITALIZATION; CHANGE IN CONTROL |
A. | If the Company shall at any time change the number of shares of its Stock without new consideration to the Company (such as by stock dividend or stock split), the total number of Shares subject to the Award Agreement hereunder shall be changed in proportion to the change in issued shares. If, during the term of this Award Agreement, the Stock of the Company shall be changed into another kind of securities of the Company or into cash, securities, or evidences of indebtedness of another corporation, other property, or any combination thereof, whether as a result of reorganization, sale, merger, consolidation, or other similar transaction, the Company shall cause adequate provision to be made whereby the Employee shall thereafter be entitled to receive, under this Award Agreement, the cash, securities, evidences of indebtedness, other property, or any combination thereof, the Employee would have been entitled to receive for Stock acquired through this Award Agreement immediately prior to the effective date of such transaction. If appropriate, the number of Shares of this Award Agreement following such reorganization, sale, merger, consolidation, or other similar transaction, may be adjusted in each case in such equitable manner as the Committee may select. |
B. | In the event of a Change in Control that involves a Corporate Transaction, Section 12(b) of the Plan will govern this Award. In the event of a Change in Control that does not involve a Corporate Transaction, Section 12(c) of the Plan will govern this Award. |
5. | TRANSFER |
6. | VOTING RIGHTS AND DIVIDENDS |
7. | TAXES AND WITHHOLDING |
8. | ADMINISTRATION |
9. | AMENDMENTS |
10. | CODE SECTION 409A |
A. | The parties intend that the payments and benefits under the Plan and this Award Agreement comply with Code Section 409A, to the extent applicable, and accordingly, to the maximum extent permitted, the Plan and this Award Agreement shall be interpreted and administered to be in compliance therewith. Any payments described in this Award Agreement or the Plan that are due within the “short-term deferral period” as defined in Code Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. |
B. | Notwithstanding any provisions in the Plan to the contrary, to the extent that the Company has any stock which is publicly traded on an established securities market or otherwise, if the Employee is a Specified Employee and a Separation from Service occurs, any payment of deferred compensation, within the meaning of Code Section 409A, otherwise payable under this Award Agreement because of employment termination will be suspended until, and will be paid to the Employee on, the first day of the seventh month following the month in which Separation from Service occurs. Payments delayed by the preceding sentence shall be accumulated and paid on the earliest administratively feasible date permitted by such sentence. “Specified Employee” shall mean an individual who, at the time of her Separation from Service, is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) and Treasury regulation section 1.409A-1(i). For purposes of the preceding sentence, the “specified employee identification date” shall be December 31 (of the prior Plan year) and the “specified employee effective date” shall be the following April 1. |
11. | PLAN CONTROLLING |
12. | QUALIFICATION OF RIGHTS |
13. | GOVERNING LAW |
14. | REPRESENTATIONS AND WARRANTIES |
A. | The Employee represents and warrants that she has received and reviewed a Plan Memorandum, which summarizes the provisions of the Plan. |
B. | The Company makes no representations or warranties as to the tax consequences of and benefits vested or payable under this Award, and in no event shall the Company be responsible or liable for any taxes, penalties or interest assessed against the Employee for any benefit or payment provided under this Award. |
C. | The Employee represents and warrants her understanding that the grant of the Performance Shares by the Company is voluntary and does not create in the Employee any contractual or other right to receive future grants of Performance Shares or benefits in lieu of Performance Shares in any circumstance. All decisions with respect to any future awards will be made in the sole discretion of the Company. |
15. | SUCCESSORS AND ASSIGNS |
16. | WAIVER |
17. | TITLES |
18. | COUNTERPARTS/ COPIES |
By: | |
[Name] | |
[Title] | |
Kimball International, Inc. |
Employee Signature | Date |
1. | GRANT OF RESTRICTED STOCK UNITS |
2. | VESTING |
A. | The Award shall vest in full on , 20 (“Vesting Date”), if the Employee remains in Continuous Service as an executive officer through the Vesting Date. |
B. | If the Employee ceases Continuous Service before the Vesting Date for any reason other than Disability, death or CEO Retirement (as defined below), the Employee will forfeit all rights with respect to any unvested portion of this Award. |
C. | Disability, Death or CEO Retirement. As permitted by Section 6(d)(ii) of the Plan, the following (and not the provisions of Section 6(d)(ii)(A) of the Plan) shall govern if the Employee ceases Continuous Service prior to the Vesting Date by reason of Disability, death or CEO Retirement: |
(i) | If the Employee ceases Continuous Service before the Vesting Date by reason of Disability, death or CEO Retirement, a prorated portion of this Award will vest on the date such Continuous Service ceases, calculated by multiplying the total number of Shares of Stock set forth in Section 1 by a fraction determined by: |
(ii) | For purposes of this Award Agreement, “CEO Retirement” shall mean any termination of the Employee’s Continuous Service, other than for Cause, occurring at or after the Employee has attained the minimum retirement age under the governmental retirement system for the applicable country (age 62 in the United States), or at or after the Employee has reached the age of 55 and has a combination of age plus years of Continuous Service as an executive officer of the Company equal to or greater than 65. |
(iii) | To be considered a CEO Retirement under this Award Agreement, the Employee must comply with the process for approval of CEO Retirement established by the Company and must have incurred a Separation of Service, as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). “Separation from Service” shall mean a “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury regulation section 1.409A-1(h) and shall mean with respect to an Employee, the complete termination of the employment relationship between the Employee and the Company and/or all affiliated employers within the meaning of Code Section 414(b) or (c), for any reason other than death. |
D. | Notwithstanding anything to the contrary set forth in the Plan or this Award Agreement, the Employee shall forfeit any unvested Restricted Stock Units awarded hereunder in the event that: |
(i) | The Employee is discharged by the Company from her employment with the Company for Cause. For purposes herein, “Cause” shall mean, with respect to termination of the Employee’s employment with the Company, one or more of the following occurrences: (1) Employee’s willful and continued failure to perform substantially the duties or responsibilities of Employee’s position (other than by reason of Disability) or the willful and continued failure to follow lawful instructions of a senior executive or the Board of Directors, if such failure continues for a period of five days after the Company delivers to Employee a written notice identifying such failure; (2) Employee’s conviction of a felony or of another crime that reflects in a materially adverse manner on the Company or its markets or business operations; (3) Employee’s engaging in fraudulent or dishonest conduct, gross misconduct that is injurious to the Company, or any misconduct that involves moral turpitude; or (4) Employee’s failure to uphold a fiduciary duty to the Company or its shareholders; or |
(ii) | The Employee breaches any of her employee and ancillary agreements, including without limitation, any confidentiality or non-solicitation obligation documented by agreement (collectively, “Employee Agreement”). In addition, for purposes herein, an Employee shall be deemed to have breached an Employee Agreement if the Employee seeks judicial intervention to limit or nullify the terms of such Employee Agreement. |
E. | In the event that Restricted Stock Units vest and Shares are issued to the Employee under this Award Agreement and within twelve (12) months after the issuance of such Shares to the Employee, (a) the Company identifies facts that result in, or, in the event of issuance of such Shares as a result of CEO Retirement or Disability, would have resulted in, a termination for Cause, or (b) the Employee breaches an Employee Agreement, then, in addition to the forfeiture under Section 2.D. of this Award Agreement, the Employee agrees to repay the value of such Shares received under this Award Agreement within thirty (30) days of the date of written demand by the Company (“Clawback Amount”). |
F. | Awards and any compensation or benefits associated therewith shall also be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 10D of the Exchange Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder; (ii) similar rules under the laws of any other jurisdiction; and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to a Participant. This Award Agreement may be unilaterally amended by the Committee to comply with any such compensation recovery policy. |
3. | PHANTOM DIVIDENDS |
4. | DELIVERY OF SHARES |
5. | CHANGES IN CAPITALIZATION; CHANGE IN CONTROL |
A. | If the Company shall at any time change the number of shares of its Stock without new consideration to the Company (such as by stock dividend or stock split), the total number of Shares subject to the Award Agreement hereunder shall be changed in proportion to the change in issued shares. If, during the term of this Award Agreement, the Stock of the Company shall be changed into another kind of securities of the Company or into cash, securities or evidences of indebtedness of another corporation, other property or any combination thereof, whether as a result of reorganization, sale, merger, consolidation, or other similar transaction, the Company shall cause adequate provision to be made whereby the Employee shall thereafter be entitled to receive, under this Award Agreement, the cash, securities, evidences of indebtedness, other property or any combination thereof, the Employee would have been entitled to receive for Stock acquired through this Award Agreement immediately prior to the effective date of such transaction. If appropriate, the number of Shares of this Award Agreement following such reorganization, sale, merger, consolidation or other similar transaction may be adjusted, in each case in such equitable manner as the Committee may select. |
B. | In the event of a Change in Control that involves a Corporate Transaction, Section 12(b) of the Plan will govern this Award. In the event of a Change in Control that does not involve a Corporate Transaction, Section 12(c) of the Plan will govern this Award. |
6. | TRANSFER |
7. | VOTING RIGHTS |
8. | TAXES AND WITHHOLDING |
9. | ADMINISTRATION |
10. | AMENDMENTS |
11. | CODE SECTION 409A |
A. | The parties intend that the payments and benefits under the Plan and this Award Agreement comply with Code Section 409A, to the extent applicable, and accordingly, to the maximum extent permitted, the Plan and this Award Agreement shall be interpreted and administered to be in compliance therewith. Any payments described in this Award Agreement or the Plan that are due within the “short-term deferral period” as defined in Code Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. |
B. | Notwithstanding any provisions in the Plan to the contrary, to the extent that the Company has any stock which is publicly traded on an established securities market or otherwise, if the Employee is a Specified Employee and a Separation from Service occurs, any payment of deferred compensation, within the meaning of Code Section 409A, otherwise payable under this Award Agreement because of employment termination will be suspended until, and will be paid to the Employee on, the first day of the seventh month following the month in which Separation from Service occurs. Payments delayed by the preceding sentence shall be accumulated and paid on the earliest administratively feasible date permitted by such sentence. “Specified Employee” shall mean an individual who, at the time of her Separation from Service, is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) and Treasury regulation section 1.409A-1(i). For purposes of the preceding sentence, the “specified employee identification date” shall be December 31 (of the prior Plan year) and the “specified employee effective date” shall be the following April 1. |
12. | PLAN CONTROLLING |
13. | QUALIFICATION OF RIGHTS |
14. | GOVERNING LAW |
15. | REPRESENTATIONS AND WARRANTIES |
A. | The Employee represents and warrants that she has received and reviewed a Plan Memorandum, which summarizes the provisions of the Plan. |
B. | The Company makes no representations or warranties as to the tax consequences of and benefits vested or payable under this Award, and in no event shall Company be responsible or liable for any taxes, penalties or interest assessed against the Employee for any benefit or payment provided under this Award. |
C. | The Employee represents and warrants her understanding that the grant of the Restricted Stock Units by the Company is voluntary and does not create in the Employee any contractual or other right to receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units in any circumstance. All decisions with respect to any future awards will be made in the sole discretion of the Company. |
16. | SUCCESSORS AND ASSIGNS |
17. | WAIVER |
18. | TITLES |
19. | COUNTERPARTS/ COPIES |
By: | |
[Name] | |
[Title] | |
Kimball International, Inc. |
Employee Signature | Date |
1. | GRANT OF PERFORMANCE UNITS |
2. | PERFORMANCE CYCLE |
3. | SATISFACTION OF PERFORMANCE-BASED CONDITIONS |
4. | ELIGIBILITY CONDITIONS |
A. | As soon as practical following the end of the Performance Cycle, the Committee shall determine whether and the extent to which the performance conditions set forth in Section 5 of this Award Agreement have been satisfied and the number of Performance Units, if any, earned by the Employee (the date of such determination by the Committee hereinafter referred to as the “Determination Date”), provided, however, that to receive Shares in settlement of the Performance Units determined by the Committee to have been earned, the Employee must have remained in Continuous Service from the date hereof through the last day of the Performance Cycle (the “Settlement Date”), except as provided in subsection (C) below. |
B. | If the Employee ceases Continuous Service before the end of the Performance Cycle for any reason other than Disability, death or CEO Retirement (as defined below), the Employee will forfeit all rights with respect to any Performance Units under this Award Agreement. |
C. | Disability, Death or CEO Retirement. As permitted by Section 6(d)(ii) of the Plan, the following (and not the provisions of Section 6(d)(ii)(A) of the Plan) shall govern if the Employee ceases Continuous Service prior to the Vesting Date by reason of Disability, death or CEO Retirement: |
(i) | If the Employee ceases Continuous Service before the end of the Performance Cycle by reason of Disability or CEO Retirement, the number of Performance Units to which the Employee may be entitled under this Award Agreement, if any, will be determined on the Determination Date based on the Company’s performance through the last day of the Performance Cycle, but shall be prorated to reflect the portion of the Performance Cycle that the Employee worked prior to such Disability or CEO Retirement. Except as provided in Section 15 below, the Shares corresponding to such earned Performance Units shall be paid within sixty (60) days following the end of the Performance Cycle. |
a. | For purposes of this Award Agreement, “CEO Retirement” shall mean any termination of the Employee’s Continuous Service, other than for Cause, occurring at or after the Employee has attained the minimum retirement age under the governmental retirement system for the applicable country (age 62 in the United States), or at or after the Employee has reached the age of 55 and has a combination of age plus years of Continuous Service as an executive officer of the Company equal to or greater than 65. |
b. | To be considered a CEO Retirement under this Award Agreement, the Employee must comply with the process for approval of CEO Retirement established by the Company and must have incurred a Separation of Service, as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). “Separation from Service” shall mean a “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i) and Treasury regulation section 1.409A-1(h) and shall mean with respect to an Employee, the complete termination of the employment relationship between the Employee and the Company and/or all affiliated employers within the meaning of Code Section 414(b) or (c), for any reason other than death. |
c. | Performance Units will be prorated by multiplying the Performance Units determined to be earned for the Performance Cycle by a fraction determined by: |
• | Numerator = number of months during the Performance Cycle that the Employee maintained Continuous Service [as an executive officer of the Company] prior to such Disability or CEO Retirement, including the month in which the Continuous Service ceases, which shall be considered a full month. |
• | Denominator = number of months in the Performance Cycle. |
(ii) | If the Employee ceases Continuous Service before the end of the Performance Cycle by reason of the Employee’s death, the Performance Cycle for purposes of this Award Agreement shall be treated as ending on the date of the Employee’s death. In the event of the Employee’s death, the number of Performance Units earned by the Employee shall equal the Target number of Performance Units, pro rated to reflect the portion of the Performance Cycle, as set forth in Section 2, that the Employee worked prior to her death, using the fraction described in (i)(c) above. Except as provided in Section 15 below, the Shares corresponding to such earned Performance Units shall be paid within thirty (30) days following the date of the Employee’s death. |
D. | Notwithstanding anything to the contrary set forth in the Plan or this Award Agreement, the Employee shall forfeit any Performance Units awarded hereunder in the event that: |
(i) | The Employee is discharged by the Company from her employment with the Company for Cause. For purposes herein, “Cause” shall mean, with respect to termination of the Employee’s employment with the Company, one or more of the following occurrences: (1) Employee’s willful and continued failure to perform substantially the duties or responsibilities of Employee’s position (other than by reason of Disability), or the willful and continued failure to follow lawful instructions of a senior executive or the Board of Directors, if such failure continues for a period of five days after the Company delivers to Employee a written notice identifying such failure; (2) Employee’s conviction of a felony or of another crime that reflects in a materially adverse manner on the Company or its markets or business operations; (3) Employee’s engaging in fraudulent or dishonest conduct, gross misconduct that is injurious to the Company, or any misconduct that involves moral turpitude; or (4) Employee’s failure to uphold a fiduciary duty to the Company or its shareholders; or |
(ii) | The Employee breaches any of her employee and ancillary agreements, including without limitation, any confidentiality or non-solicitation obligation documented by agreement (collectively, “Employee Agreement”). In addition, for purposes herein, an Employee shall be deemed to have breached an Employee Agreement if the Employee seeks judicial intervention to limit or nullify the terms of such Employee Agreement. |
E. | In the event that Performance Units are earned by, and Shares are paid to, the Employee under this Award Agreement and within twelve (12) months after the payment of such Shares to the Employee, (a) the Company identifies facts that result in, or, in the event of payment of such Shares as a result of CEO Retirement or Disability, would have resulted in, a termination for Cause, or (b) the Employee breaches an Employee Agreement, then, in addition to the forfeiture under Section 4.D. of this Award Agreement, the Employee agrees to repay the value of such Shares received under this Award Agreement within thirty (30) days of the date of written demand by the Company (“Clawback Amount”). |
F. | Awards and any compensation or benefits associated therewith shall also be subject to repayment or forfeiture as may be required to comply with (i) any applicable listing standards of a national securities exchange adopted in accordance with Section 10D of the Exchange Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations of the U.S. Securities and Exchange Commission adopted thereunder; (ii) similar rules under the laws of any other jurisdiction; and (iii) any policies adopted by the Company to implement such requirements, all to the extent determined by the Company in its discretion to be applicable to a Participant. This Award Agreement may be unilaterally amended by the Committee to comply with any such compensation recovery policy. |
5. | PERFORMANCE CONDITIONS - DETERMINATION OF TOTAL NUMBER OF PERFORMANCE UNITS EARNED AND VESTED |
A. | Subject to the eligibility conditions in Section 4 of this Award Agreement, after completion of the Performance Cycle, the total number of Performance Units determined to be earned will be based entirely on the Company’s Relative Total Shareholder Return (“Relative TSR”), as determined in this Section 5.A., as of the last day of the Performance Cycle. For purposes of this Award, Total Shareholder Return (“TSR”) shall be expressed as a compound annual growth rate as calculated in the following example, with the ##-month period representing the number of months of the award: |
TSR = | ( | Ending stock price + dividends paid | ) | 12 ## | – 1 |
Beginning stock price |
(i) | “Beginning Stock Price” shall mean the average closing price as reported on the Nasdaq National Market (or such other principal exchange on which the Company’s Stock is then listed for trading), of one (1) Share of the Company’s Stock for the thirty (30) trading days immediately prior to the first day of the Performance Cycle. Should the Company enter into a stock split or reverse stock split during the Performance Cycle, the Beginning Stock Price will be equitably adjusted in the calculation to address this change in shares outstanding. |
(ii) | “Ending Stock Price” shall mean the average closing price as reported on the Nasdaq National Market (or such other principal exchange on which the Company’s Stock is then listed for trading) of one (1) Share of the Company’s Stock for the last thirty (30) trading days of the Performance Cycle. |
(iii) | “Dividends Paid” shall include all dividends declared, with an ex-dividend date within the Performance Cycle, if any, with respect to the Shares underlying the Performance Units that are the subject of this Award Agreement. |
B. | To determine Relative TSR, a peer group of companies approved by the Committee will be used. The peer group shall consist of those companies set forth on Exhibit 1 to this Award Agreement. If any company in the then-applicable peer group declares bankruptcy, the company shall remain in the peer group. However, if a company in the peer group undergoes a corporate transaction or other reorganization, such as a spin, split, or delisting, that company shall be removed from the beginning and ending calculations. |
C. | Each peer group company’s TSR expressed as a compound annual growth rate (“CAGR”) will be determined at the end of the Performance Cycle. The 80th, 50th and 30th percentile TSRs of the peer group will then be computed to determine the Performance Unit Payout as a Percent of Target in accordance with the following chart. The TSR for companies included in the peer group shall be calculated using the same formula as for the Company, but using each peer group company’s own stock prices and dividends. |
Relative TSR | Performance Unit Payout as a Percent of Target |
80th Percentile and above | 200% |
50th Percentile | 100% |
30th Percentile | 50% |
Less than 30th Percentile | 0% |
6. | SETTLEMENT OF THE AWARD AND DELIVERY OF SHARES |
7. | CHANGE IN CONTROL |
8. | SHARE CHANGES |
9. | TRANSFER |
10. | VOTING RIGHTS AND DIVIDENDS |
11. | TAXES AND WITHHOLDING |
12. | ADMINISTRATION |
13. | AMENDMENTS |
14. | RESTRICTIONS ON SHARES |
15. | CODE SECTION 409A |
A. | The parties intend that the payments and benefits under the Plan and this Award Agreement comply with Code Section 409A, to the extent applicable, and accordingly, to the maximum extent permitted, the Plan and this Award Agreement shall be interpreted and administered to be in compliance therewith. Any payments described in this Award Agreement or the Plan that are due within the “short-term deferral period” as defined in Code Section 409A shall not be treated as deferred compensation unless applicable law requires otherwise. |
B. | Notwithstanding any provisions in the Plan to the contrary, to the extent that the Company has any stock which is publicly traded on an established securities market or otherwise, if the Employee is a Specified Employee and a Separation from Service occurs, any payment of deferred compensation, within the meaning of Code Section 409A, otherwise payable under this Award Agreement because of employment termination will be suspended until, and will be paid to the Employee on, the first day of the seventh month following the month in which Separation from Service occurs. Payments delayed by the preceding sentence shall be accumulated and paid on the earliest administratively feasible date permitted by such sentence. “Specified Employee” shall mean an individual who, at the time of her Separation from Service, is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) and Treasury regulation section 1.409A-1(i). For purposes of the preceding sentence, the “specified employee identification date” shall be December 31 (of the prior Plan year) and the “specified employee effective date” shall be the following April 1. |
16. | PLAN CONTROLLING |
17. | QUALIFICATION OF RIGHTS |
18. | GOVERNING LAW |
19. | REPRESENTATIONS AND WARRANTIES |
A. | The Employee represents and warrants that she has received and reviewed a Plan Memorandum, which summarizes the provisions of the Plan. |
B. | The Company makes no representations or warranties as to the tax consequences of and benefits vested or payable under this Award, and in no event shall the Company be responsible or liable for any taxes, penalties or interest assessed against the Employee for any benefit or payment provided under this Award. |
C. | The Employee represents and warrants her understanding that the grant of the Performance Units by the Company is voluntary and does not create in the Employee any contractual or other right to receive future grants of Performance Units, or benefits in lieu of Performance Units in any circumstance. All decisions with respect to any future awards will be made in the sole discretion of the Company. |
20. | SUCCESSORS AND ASSIGNS |
21. | WAIVER |
22. | TITLES |
By: | |
[Name] | |
[Title] | |
Kimball International, Inc. |
Employee Signature | Date |
1. | DEFINITIONS |
a) | “2017 Stock Plan” means the Kimball International, Inc. 2017 Stock Incentive Plan or any replacement thereof. |
b) | “Affiliate” means any entity that is a member, along with Kimball International, Inc., of a controlled group of corporations or a group of other trades or businesses under common control, within the meaning of Code Section 414(b) or (c). |
c) | “Award Agreement” means any agreement or other instrument evidencing a grant or award of Options, Stock Appreciation Rights, Restricted Stock, Stock Units, Other Stock-Based Awards (each as defined in the 2017 Stock Plan), or any other rights awarded under the 2017 Stock Plan. |
d) | “Board of Directors” means the Board of Directors of Kimball. |
e) | “Cause” means, with respect to termination of Executive’s employment by Kimball, one or more of the following occurrences, as determined by the Board of Directors: (i) Executive’s willful and continued failure to perform substantially the duties or responsibilities of Executive’s position or the willful and continued failure to follow lawful instructions of a senior executive or the Board of Directors, if such failure continues for a period of five days after Kimball delivers to Executive a written notice identifying such failure; (ii) Executive’s conviction of a felony or of another crime that reflects in a materially adverse manner on Kimball in its markets or business operations; (iii) Executive’s engaging in fraudulent or dishonest conduct, gross misconduct that is injurious to Kimball, or any misconduct that involves moral turpitude; (iv) Executive’s material breach of her obligations under this Agreement or a fiduciary duty to Kimball or its shareowners; or (v) Executive’s engaging in activity as an employee of Kimball that constitutes gross negligence. For any of the stated occurrences to constitute “Cause” under this Agreement, the Board of Directors must find that the stated act or omission occurred, by a resolution duly adopted by the affirmative vote of at least three-quarters of the entire membership of the Board of Directors, after giving reasonable notice to Executive and an opportunity for Executive, together with Executive’s counsel, to be heard before the Board of Directors. |
f) | “Change in Control” means the consummation of any of the following that is not an Excluded Transaction: (i) the acquisition, by any one person or more than one person acting as a Group, of Majority Ownership of a Relevant Company through merger, consolidation, or stock transfer; (ii) the acquisition during any 12-month period, by any one person or more than one person acting as a Group, of ownership interests in a Relevant Company possessing 35 percent or more of the total voting power of all ownership interests in the Relevant Company; (iii) the acquisition of ownership during any 24-month period, by any one person or more than one person acting as a Group, of 40 percent or more of the total gross fair market value of the assets of a Relevant Company; or (iv) the replacement of a majority of members of the Board of Directors during any 12-month period, by members whose appointment or election is not endorsed by a majority of the members of the Board of Directors prior to the date of the appointment or election. For purposes of this definition: “Relevant Company” means, with respect to Executive, Kimball International, Inc., any Affiliate that employs Executive, any entity that has Majority Ownership of either Kimball International, Inc. or that Affiliate, or any entity in an uninterrupted chain of Majority Ownership culminating in the ownership of Kimball International, Inc. or that Affiliate; “Excluded Transaction” means any occurrence that does not constitute a change in the ownership or effective control, or in the ownership of a substantial portion of the assets of, a Relevant Entity within the meaning of Code Section 409A(a)(2)(A)( v) and its interpretive regulations; “Majority Ownership” of an entity means ownership interests representing more than fifty percent (50%) of the total fair market value or of the total voting power of all ownership interests in the entity; “Group” has the meaning provided in Code Section 409A and its interpretive regulations with respect to changes in ownership, effective control, and ownership of assets; and an individual who owns a vested option to purchase either stock or another ownership interest is deemed to own that stock or other ownership interest. |
g) | “Change in Control Agreement” means the Change in Control Agreement, if any, entered into by and between Kimball and Executive on its effective date, the terms and conditions of which are incorporated herein by reference. |
h) | “Code” means the Internal Revenue Code of 1986, as amended. |
i) | “Compensation Payment” means a payment by Kimball to or for the benefit of Executive in the nature of compensation, whether paid or payable pursuant to this Agreement or otherwise. |
j) | “Continuous Service” means the absence of any interruption or termination in the provision of service by Executive to Kimball or an Affiliate. Continuous Service will not be considered interrupted in the case of (i) sick leave, military leave or any other leave of absence approved by Kimball; (ii) transfer between Kimball and an Affiliate or any successor to Kimball; or (iii) any change in status so long as the individual remains in the Continuous Service of Kimball or any Affiliate. Executive’s Continuous Service shall be deemed to have terminated either upon an actual cessation of providing services to Kimball or any Affiliate or upon the entity to which Kimball provides services ceasing to be an Affiliate. |
k) | “Control Termination Period” means the time period beginning one year before a Change in Control and ending on the earlier of (i) two years following that Change in Control or (ii) Executive’s death. |
l) | “Customer” means any person or entity who, in the twelve (12) month period immediately preceding Executive’s termination from Kimball, purchased or arranged for the purchase or initiated an order for the purchase of Kimball products or services, including, but not limited to, dealers, brokers, distributors, end-users, and retailers. |
m) | “Deferred Compensation” means compensation provided under a nonqualified deferred compensation plan as defined in, and subject to, Code Section 409A. |
n) | “Disability” means, with respect to Executive, a physical or mental impairment that would entitle Executive to benefits under Kimball’s long-term disability plan. |
o) | “Effective Date” means the date first stated above. |
p) | “Good Reason” means, with respect to the termination of employment by Executive, one or more of the following occurrences: (i) a material adverse change in the nature or scope of Executive’s duties and responsibilities; (ii) a reduction in Executive’s base salary rate or reduction in incentive category; (iii) a reduction of 5 percent or more in value of the aggregate benefits provided to Executive and her dependents under Kimball’s employee benefit plans; (iv) a significant diminution in Executive’s position, authority, job title, duties, or responsibilities; (v) a relocation of Executive’s principal site of employment to a location more than fifty (50) miles from the principal employment site; (vi) a material breach by Kimball of its obligations to Executive under this Agreement or the Change in Control Agreement; or (vii) failure by Kimball to obtain the assumption agreement from any successor as contemplated in Section 21. None of the identified events, however, will constitute “Good Reason” unless each of the following procedural conditions is satisfied: within 90 days of the initial occurrence of the event, Executive must give written notice to Kimball of such occurrence; Kimball must have failed to remedy that occurrence within thirty 30 days after receiving such notice, and Executive must resign no later than 12 months after the initial occurrence of the event. |
q) | “Kimball” means Kimball International, Inc., any Affiliate, and any successor to the business or assets of Kimball International, Inc. that executes and delivers the agreement provided for in Section 11 of the Change in Control Agreement or which otherwise becomes bound by all of the terms and provisions of this Agreement by the operation of law. |
r) | “Notice of Termination” means a written notice, from the party initiating Executive’s employment termination to the other party, specifying the facts and circumstances claimed to provide the basis for termination. |
s) | “Parachute Payment” means a “parachute payment” as defined in Code Section 280G(b)(2) that would subject any Compensation Payment to the excise tax imposed by Code Section 4999 or the denial of deduction imposed by Code Section 280G. |
t) | “Professional Services Firm” means a nationally recognized certified public accounting firm or compensation consulting firm mutually selected by Kimball and Executive. |
u) | “Profit Sharing Incentive” means the compensation paid to Executive pursuant to the 2016 Annual Cash Incentive Plan, as amended, or any replacement thereof. |
v) | “Rule of 65” means any termination of Executive’s Continuous Service, other than for Cause, occurring at or after Executive has reached the age of 55 and has a combination of age plus years of Continuous Service as an executive officer of Kimball equal to or greater than 65. |
w) | “Shares” means unrestricted shares of common stock of Kimball, NASDAQ symbol KBAL, formerly referred to as Class B, awarded pursuant to the 2017 Stock Plan. |
x) | “Termination Date” means the date on which Executive’s employment with Kimball is terminated pursuant to Executive’s Notice of Termination to Kimball, Kimball’s Notice of Termination to Executive, or by reason of Executive’s death or Disability. |
y) | “Trade Secrets and Confidential Information” means formulas, patterns, designs, compilations, programs, devices, methods, techniques, processes or general know-how that derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy for products utilized in the manufacture, distribution and sale of electronics, office and health care furniture, and other manufacturing industries. It also includes Kimball’s valuable information, including information about customers, dealers and suppliers, and among other things, about their technical problems and needs, purchasing habits, and procedures, all resulting in a great deal of customer goodwill, as well as financial records, contracts, patents, manufacturing technology, marketing and strategic plans, and other valuable information. |
z) | “Value” means, with respect to Executive and a determination date, the following amounts, computed without regard to any termination of rights that would otherwise occur under the applicable plan because of Executive’s cessation of continuous service as of that determination date: |
2. | Employment at Will |
3. | Restrictive Covenants |
a) | Non-Competition During At-Will Employment By Kimball |
b) | Non-Competition During Twelve-Month Post-Employment |
i. | Have an ownership interest in any entity or person that competes with Kimball; |
ii. | Work for, act as an agent for, act in an administrative or financial capacity for, act as a sales or marketing representative for, advise, consult with or manage any entity or person that competes with Kimball; or |
iii. | Compete with Kimball for customers of Kimball. |
c) | Restrictive Covenant Conditions |
i. | The terms “compete” or “competes” or “competition” mean the actual or planned business activities of an entity or person whereby the entity or person sells, solicits, or markets products or services similar or analogous to those which Executive sold, worked on, or provided services on for Kimball during the twelve (12) month period immediately prior to Executive’s separation from Kimball. |
ii. | In the event that Executive worked for Kimball less than a total of twelve (12) months prior to separation, the non-competition provisions in Section (3) above shall remain in effect the longer of (a) six (6) months, or (b) the term of Executive’s employment with Kimball (e.g., if Executive worked for Kimball for ten (10) months, the non-competition provisions apply for ten (10) months post-separation). |
iii. | Nothing in Sections 3(a) or (b) prohibit Executive from purchasing, for investment purposes only, any stock or corporate security traded or quoted on a national securities |
iv. | This provision shall be construed as independent of any other provision of this Agreement and shall survive the termination of this Agreement. The existence of any claim or cause of action of Executive against Kimball, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Kimball of this Restrictive Covenant. |
d) | Other Limited Prohibitions |
i. | Request or advise any customer or client of Kimball with whom Executive had personal contact in the course of Executive’s employment by Kimball, or any person or entity having business dealings with Kimball with whom Executive had personal contact in the course of Executive’s employment by Kimball, to withdraw, curtail, alter, or cease such business with Kimball. |
ii. | Disclose to any person or entity the identities of any customers, clients, or any persons having business dealings with Kimball or the division(s)/subsidiary(s) of Kimball to which Executive was assigned at the time of separation from Kimball and for the preceding twelve (12) months. |
iii. | Directly or indirectly solicit, influence, or attempt to influence any other employee of Kimball to separate from Kimball. |
e) | Trade Secrets and Confidential Information |
f) | Conflict of Interest |
g) | Notification of Prospective or Subsequent Employers |
4. | Inventions and Patents |
5. | Compensation upon Termination of Employment Relationship without Cause or For Good Reason |
a) | Base Salary As soon as practicable following the Termination Date, Kimball will pay Executive’s full base salary due and owing through the Termination Date at the rate in effect on the date Notice of Termination is given. |
b) | Enhanced Severance Pay |
i. | Severance pay equal to the sum of (1) Executive’s annual base salary at the highest rate in effect during the three (3) years immediately preceding the last day of employment and (2) the higher of either Executive’s target incentive for the period in which the last day of employment occurs or Executive’s average annual incentive award for the three annual incentive periods immediately preceding the last day of employment. |
ii. | If Executive’s last day of employment occurs during a Control Termination Period and Executive is a party to a Change in Control Agreement, section (i) shall not apply and the severance pay amount will be determined under the Change in Control Agreement. |
c) | Welfare and Related Benefits |
i. | Reimbursement for welfare and related benefits equal to the product of (i) fifty thousand dollars ($50,000) and (ii) a fraction, the numerator of which is the Employment Cost Index, as published by the U.S. Bureau of Labor Statistics, for the completed calendar quarter immediately preceding Executive’s Termination Date, and the denominator of which is the Employment Cost Index for the first calendar quarter of 2015. |
ii. | If Executive’s last day of employment occurs during a Control Termination Period and Executive is a party to a Change in Control Agreement, the reimbursement amount will be determined under the Change in Control Agreement. |
d) | Outplacement Assistance To assist Executive in obtaining replacement employment, Kimball will reimburse Executive for up to $25,000 of the costs of outplacement services during the first twelve months following the Termination Date. |
e) | Timing of Certain Rights and Payments |
i. | Service-Based Incentive Plan Rights. As of the Termination Date, (i) Executive’s Options and related Stock Appreciation Rights awarded under the 2017 Stock Plan will become fully vested and exercisable; (ii) all restrictions will lapse for Executive’s service-based Restricted Stock awarded under the 2017 Stock Plan; and (iii) Executive’s service-based Stock Units awarded under the 2017 Stock Plan will become fully vested and payable. As soon as practicable following the Termination Date, Kimball will make a single payment to Executive, equal to the aggregate Value of all benefits under the plans identified in this subsection (i), in the form of cash, Shares, or a combination of cash and Shares, as determined by the Compensation Committee of the Board of Directors, in its sole discretion. That single payment will constitute payment in full and complete satisfaction of Executive’s rights and benefits under all of Executive’s award agreements and the applicable plans. |
ii. | Performance-Based Incentive Plan Rights. After the Termination Date, Executive will continue to be a participant in these performance-based incentive plans, to the same extent as immediately before the Termination Date: (i) performance-based Stock Units under the Relative Total Shareholder Return program of the 2017 Stock Plan with payout to occur in accordance with section 4.C.(i) of the Executive’s Performance Unit Award Agreement; (ii) other performance-based Restricted Stock or performance-based Stock Units awarded under the 2017 Stock Plan; and (iii) the 2016 Annual Cash Incentive Plan, as amended, or any subsequent replacement plan, with respect to any incentive payments due for the fiscal year immediately preceding the Termination Date. Executive will become vested in and receive payment of benefits under those performance-based plans in the same amounts and at the same times as if Executive had continued in active employment through the end of the applicable performance periods and vesting dates. In addition, Executive will receive an incentive payment under the 2016 Annual Cash Incentive Plan, as amended, or any subsequent replacement plan, for the fiscal year in which the Termination Date occurs, and |
iii. | SERP Rights. As of the Termination Date, Executive will become fully vested in the Makeup Contributions Account in the Supplemental Employee Retirement Plan and, without regard to Executive’s payment elections previously made under that plan, will receive all benefit amounts under that plan in a single, lump-sum cash payment as soon as practicable following the Termination Date. |
iv. | Amendment of Award Agreements. To the extent that the provisions of this subsection are inconsistent with the provisions of Executive’s Award Agreements, Executive and Kimball hereby amend those Award Agreements to include the provisions of this subsection, which supersede any inconsistent provisions of the Award Agreements. |
v. | Restrictive Covenants. The Executive shall not be entitled to receive any payments or benefits under this Agreement unless the Executive complies in full with the restrictive covenants contained in Section 3 of this Agreement. |
6. | Compensation On Other Termination Of Employment |
a) | Termination by Kimball for Cause or by Executive without Good Reason. If Kimball terminates Executive’s employment for Cause, or if Executive terminates employment without Good Reason, Kimball will pay the amount then due and owing of Executive’s full base salary through the last day of employment at the rate in effect at the date that Notice of Termination is given. |
b) | Death or Disability. In the event of Executive’s death or Disability, Kimball will pay the amount then due and owing of Executive’s full base salary through the date of death or Disability at the rate in effect at the date of the event. Kimball agrees that all awards under any cash incentive plans and any equity awards granted to Executive on or after the Effective Date shall contain provisions which provide for pro-rated vesting upon Executive’s death or Disability. |
c) | Other Benefit Programs. Executive shall also be entitled to: (i) benefits under Kimball’s generally applicable welfare and retirement plans, in accordance with the respective terms of such plans; and (ii) Executive’s rights under the 2016 Annual Cash Incentive Plan, as amended, or any subsequent replacement plan, the Supplemental Employee Retirement Plan, the 2017 Stock Plan and award agreements granted thereunder, and any other equity or incentive plan, in accordance with the respective terms of those plans and agreements. For purposes of determining whether Executive is eligible for the classification of retirement, if applicable, under the 2016 Annual Cash Incentive Plan, as amended, or any subsequent replacement plan, the Supplemental Employee Retirement Plan, as amended, or any subsequent replacement plan, or the 2017 Stock Plan, as amended, or any subsequent replacement plan, the Rule of 65 shall be used. |
7. | Release of Claims |
8. | Code Section 409A |
a) | Post-Termination Payment Suspension |
b) | Interpretation. |
c) | Supplemental Payment. |
9. | Parachute Payments |
a) | Determination By Professional Services Firm |
b) | Adjustment of Compensation Payments |
10. | Return of Property |
11. | Security of Property |
12. | Injunctive Relief |
13. | Alternative Dispute Resolution |
14. | Assignment |
15. | Choice of Forum and Law |
16. | Non-Waiver |
17. | Mitigation of Damages |
18. | Amendment and Termination |
19. | Interpretation of Agreement |
20. | Notices |
21. | Successors |
22. | Counterparts |
23. | Binding Agreement |
KIMBALL INTERNATIONAL, INC. | EXECUTIVE | ||
By: | |||
[Name] | [Name] | ||
[Title] | |||
[address] |
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