EXHIBIT 10.8
▇▇▇▇▇▇▇▇▇ CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
▇▇▇▇▇▇▇▇▇ CORPORATION
TABLE OF CONTENTS
ARTICLE I - INTRODUCTION I-1
1.01 Purpose I-1
1.02 Effective Date and Term I-1
1.03 Participation I-1
1.04 Participation Agreement I-1
1.05 Applicability of ERISA I-1
ARTICLE II - DEFINITIONS II-1
2.01 Affiliated Company II-1
2.02 Average Monthly Compensation II-1
2.03 Benefit Accrual Percentage II-1
2.04 Board; Board of Directors II-1
2.05 Change in Control II-1
2.06 Code II-2
2.07 Committee II-2
2.08 Compensation II-2
2.09 Covered Employer II-2
2.10 Defined Benefit Plan II-3
2.11 Early Retirement II-3
2.12 Effective Date II-3
2.13 ERISA II-3
2.14 50% Joint and Survivor Annuity II-3
2.15 401(k) Plan II-3
2.16 Full-Time Employment II-3
2.17 Normal Benefit Date II-3
2.18 Normal Benefit Form II-3
2.19 Normal Retirement II-4
2.20 Participant II-4
2.21 Payment Commencement Date II-4
2.22 Plan II-4
2.23 Retirement; Retirement Date II-4
2.24 Service Years II-4
2.25 Single Life Annuity II-5
2.26 Specified Rate II-5
2.27 Sponsor II-5
2.28 Spouse II-5
2.29 Termination II-5
2.30 Termination Date II-5
2.31 Termination for Cause II-6
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▇▇▇▇▇▇▇▇▇ CORPORATION
TABLE OF CONTENTS
ARTICLE III - ADMINISTRATION OF THE PLAN III-1
3.01 Administration III-1
3.02 Board and Committee Authority; Rules and Regulations III-1
3.03 Appointment of Agents III-1
3.04 Leave of Absence III-2
3.05 Actuarial Assumptions III-2
ARTICLE IV - BENEFITS IV-1
4.01 Eligibility and Vesting IV-1
4.02 Form of Supplemental Benefit IV-1
4.03 Payment of Supplemental Benefit IV-2
4.04 Monthly Annuity Amount IV-2
4.05 Target Monthly Benefit IV-2
4.06 Monthly Offset Amount IV-2
4.07 Special Rules for Early Retirement IV-6
4.08 Termination of Plan Participation IV-7
4.09 Disability IV-7
4.10 Change of Control IV-8
4.11 Termination for Cause IV-8
ARTICLE V - DEATH OF A PARTICIPANT V-1
5.01 Termination by Reason of Death V-1
5.02 Form and Payment of Death Benefit V-1
5.03 Monthly Death Benefit Amount V-1
ARTICLE VI - MISCELLANEOUS PROVISIONS VI-1
6.01 Payments During Incapacity VI-1
6.02 Prohibition Against Assignment VI-1
6.03 Binding Effect VI-1
6.04 No Transfer of Interest VI-1
6.05 Amendment or Termination of the Plan VI-2
6.06 No Right to Employment VI-2
6.07 Notices VI-2
6.08 Governing Law VI-3
6.09 Titles and Headings; Gender of Terms VI-3
6.10 Severability VI-3
6.11 Tax Effect of Plan VI-3
6.12 Entire Agreement VI-4
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▇▇▇▇▇▇▇▇▇ CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE I
INTRODUCTION
1.01 PURPOSE. This ▇▇▇▇▇▇▇▇▇ Corporation Supplemental Executive Retirement
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Plan is hereby established by the Board of Directors of the Sponsor to enable
the Sponsor and such Affiliated Companies to attract, retain and motivate
selected executives of the Sponsor and such Affiliated Companies by providing to
such executives certain additional retirement income as more fully set forth
herein.
1.02 EFFECTIVE DATE AND TERM. This plan is adopted effective as of January 1,
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1996, and shall continue in effect until terminated by the Board of Directors.
1.03 PARTICIPATION. Participation in this Plan is open only to those
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executives of the Sponsor or any Affiliated Company who are selected for
participation in the Plan by the President of the Sponsor and approved by the
Board of Directors. The participation in this Plan by any such executive, and
the payment of any benefits under this Plan to any such executive, shall be
governed by the terms of this Plan and by the terms of the Participation
Agreement entered into by such executive with respect to this Plan pursuant to
Section 1.04 hereof.
1.04 PARTICIPATION AGREEMENT. As a condition to the commencement of
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participation in this Plan, each executive selected and approved for
participation in the Plan as provided in Section 1.03 hereof shall enter into an
agreement covering such executive's participation in the Plan (a "Participation
Agreement"), which agreement shall be executed by the Sponsor and such executive
and, if such executive is employed by an Affiliated Company, such Affiliated
Company. Each Participation Agreement shall include such terms and conditions
relating to the executive's participation in the Plan as the President of the
Sponsor may deem appropriate, subject to Board approval.
1.05 APPLICABILITY OF ERISA. This Plan is intended to be a "top-hat" plan -
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that is, an unfunded plan maintained primarily for the purpose of providing
deferred compensation to a select group of management or highly compensated
employees within the meaning of ERISA.
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ARTICLE II
DEFINITIONS
2.01 AFFILIATED COMPANY. "Affiliated Company" means only ▇▇▇▇▇▇▇▇▇
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Corporation, a Delaware corporation, and such other affiliates, if any, of the
Sponsor as the Board may from time to time expressly designate as having the
status of an Affiliated Company for purposes of this Plan.
2.02 AVERAGE MONTHLY COMPENSATION. "Average Monthly Compensation" means, with
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respect to any Participant and as of any date of reference (the "Determination
Date"), the quotient obtained by dividing (a) the highest aggregate amount of
Compensation earned by such Participant during any consecutive 36-month period
prior to (or ending on) such Determination Date, by (b) a factor of 36.
Notwithstanding the preceding sentence, in the case of a Participant who, as of
any applicable Determination Date, has not been employed by one or more Covered
Employers during at least the consecutive 36-month period ending on such
Determination Date, such participant's Average Monthly Compensation as of such
Determination Date shall be the quotient obtained by dividing (i) the total
amount of Compensation earned by such Participant prior to (and including) such
Determination Date, by (ii) a factor equal to the number of months prior to (and
including) such Determination Date during which such Participant was employed by
a Covered Employer.
2.03 BENEFIT ACCRUAL PERCENTAGE. "Benefit Accrual Percentage" means, with
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respect to any Participant and as of any date of reference, the percentage
obtained by multiplying (a) 60%, by (b) a fraction (not to exceed 1) having a
numerator equal to such Participant's Service Years (determined as of such
reference date), and having a denominator equal to the greater of fifteen years
or the total number of Service Years such Participant would have if such
Participant continued in the employ of Sponsor uninterrupted through Normal
Retirement.
2.04 BOARD; BOARD OF DIRECTORS. "Board" and "Board of Directors" each mean
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the board of directors of the Sponsor.
2.05 CHANGE IN CONTROL. "Change in Control" means (1) any consolidation or
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merger of the Sponsor in which the Sponsor is not the surviving corporation,
other than a merger of the Sponsor in which the holders of common stock or
assets of the Sponsor immediately prior to the
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merger have the same proportionate ownership of the surviving corporation
immediately after the merger; or (2) any sale, lease exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Sponsor; or (3) during any period of two
consecutive years, the individuals who at the beginning of such period
constitute the Board of Directors of the Sponsor cease for any reason to
constitute at least a majority thereof, unless the election, or the nomination
for election by the Sponsor's shareholders, of each new director was approved by
a vote of at least two-thirds of the directors still in office who were
directors at the beginning of that period; or (4) the acquisition after the date
hereof by any person (as such term is used in section 13(d) and 14(d) of the
Securities and Exchange Act of 1934, as amended, but excluding the Sponsor and
any Affiliated Company) that results in such person holding directly or
indirectly 20% or more of the combined voting power of the then outstanding
securities of the Sponsor as a result of a tender or exchange offer, open market
purchase(s), privately-negotiated purchase(s) or otherwise; or (5) the
acquisition by any person(s), firm(s), or corporation(s) of direct or indirect
ownership of 20% or more of the assets of the Sponsor which do not own at least
10% of the assets of the Sponsor as of January 1, 1996.
2.06 CODE. "Code" means the Internal Revenue Code of 1986, as amended.
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2.07 COMMITTEE. "Committee" means the committee (if any) that the Board
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appoints to administer this Plan as set forth in Section 3.01 hereof, provided,
however, the Committee shall contain at least one non-employee.
2.08 COMPENSATION. "Compensation" means, with respect to any Participant, the
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base salary paid to such Participant by any Covered Employer, including any
amounts not currently includible in such Participant's gross income by reason of
any amount deferred for the period pursuant to any non-qualified deferred
compensation arrangement between the Participant and any Covered Employer or,
Code Section 402(e)(3) and/or Code Section 125. Except as provided in the
following sentence, Compensation shall also include any annual or other short
term bonus paid by any Covered Employer to a Participant other than any bonus
paid to a Participant who is a division manager. Notwithstanding the foregoing,
the Committee shall have the sole and absolute discretion to determine, at the
time of any award under a bonus plan, or the payment of any bonus, that such
bonus does not constitute Compensation for purposes of this Plan.
2.09 COVERED EMPLOYER. "Covered Employer" means and includes both (a) the
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Sponsor, and (b) any Affiliated Company.
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2.10 DEFINED BENEFIT PLAN. "Defined Benefit Plan" means the ▇▇▇▇▇▇▇▇▇
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Corporation Employees' Pension Plan, which was frozen effective as of October
31, 1994.
2.11 EARLY RETIREMENT. "Early Retirement" means, with respect to any
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Participant, any Retirement of such Participant other than Normal Retirement,
which occurs on or after the date Participant has attained age 55 and completed
at least 10 Service Years.
2.12 EFFECTIVE DATE. "Effective Date" means January 1, 1996.
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2.13 ERISA. "ERISA" means the Employee Retirement Income Security Act of
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1974, as amended.
2.14 50% JOINT AND SURVIVOR ANNUITY. "50% Joint and Survivor Annuity" means
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an annuity which (a) provides a specified level monthly benefit during the life
of the primary beneficiary, and (b) following the death of the primary
beneficiary, provides a level monthly benefit to, and during the remaining life
of, such primary beneficiary's surviving spouse (if any) equal to 50% of the
monthly benefit provided to such primary beneficiary.
2.15 401(K) PLAN. "401(k) Plan" means the ▇▇▇▇▇▇▇▇▇ Corporation Partnership
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Plan, as such Plan is in effect as of the Effective Date hereof and as it may be
amended from time to time hereafter.
2.16 FULL-TIME EMPLOYMENT. "Full-Time Employment" means, with respect to any
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Participant, any employment or independent contractor relationship with any
organization or person, whether or not the Sponsor or an Affiliated Company,
pursuant to which such Participant performs services on a regular and continuous
basis, provided, however, that any such relationship shall not constitute Full-
Time Employment unless the Participant devotes at least an average of 35 hours
per week to the performance of services pursuant to such relationship. For
purposes of determining as of any given date whether the Participant meets the
35-hour requirement set forth in the preceding sentence, no more than the three-
month period immediately preceding such given date shall be taken into account.
2.17 NORMAL BENEFIT DATE. "Normal Benefit Date" means, with respect to any
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Participant, the ninetieth (90th) day immediately following the day upon which
such Participant attains (or is expected to attain) age 65.
2.18 NORMAL BENEFIT FORM. "Normal Benefit Form" means a Single Life Annuity,
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starting at age 65.
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2.19 NORMAL RETIREMENT. "Normal Retirement" means, with respect to any
-----------------
Participant, any Retirement of such Participant having a Retirement Date which
falls on or after the date such Participant attains age 65.
2.20 PARTICIPANT. "Participant" means any executive of the Sponsor or any
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Affiliated Company who is selected and approved for participation in this Plan
as provided in Section 1.03 hereof and who has executed a Participation
Agreement as required under Section 1.04 hereof.
2.21 PAYMENT COMMENCEMENT DATE. "Payment Commencement Date" means, with
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respect to any Participant, the ninetieth (90th) day after the earlier of (a)
such Participant's Retirement Date, or (b) the later to occur of (i) such
Participant's Termination Date and (ii) age 65.
2.22 PLAN. "Plan" means this ▇▇▇▇▇▇▇▇▇ Corporation Supplemental Executive
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Retirement Plan adopted as of the Effective Date hereof and as it may be amended
from time to time.
2.23 RETIREMENT; RETIREMENT DATE. "Retirement" occurs with respect to any
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Participant only if and when such Participant permanently ceases, for whatever
reason (whether voluntary or involuntary and including death or Disability), all
Full-Time Employment. The temporary cessation of a Participant's Full-Time
Employment shall not constitute Retirement. The cessation of a Participant's
Full-Time Employment shall be deemed to be temporary if, following such
cessation, such Participant commences (or intends to commence) actively seeking
Full-Time Employment; provided, however, that if such Participant subsequently
abandons his search (or intended search) for Full-Time Employment prior to
obtaining such Full-Time Employment, such Participant shall be deemed to incur
Retirement at the time of such abandonment. The determination as to whether
(and when) a Participant incurs Retirement shall be made solely by the Board
based on such evidence as the Board, in its discretion, deems appropriate. Such
evidence may, but is not required to include a representation of Retirement
presented to the Board by the Participant. If, following a determination by the
Board that a Participant has incurred Retirement, such participant recommences
Full-Time Employment, such Participant shall nevertheless be deemed for all
purposes of this Plan to have incurred Retirement in accordance with the Board's
original determination. A Participant's "Retirement Date" shall be the first
day, as determined by the Board, on which such Participant meets the
requirements of Retirement as set forth in this Section 2.23.
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2.24 SERVICE YEARS. "Service Years" means with respect to any Participant,
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the whole number of complete years (disregarding any incomplete year) elapsing
during the single, period commencing on the date such Participant initially
commenced employment with any Covered Employer and ending on such Participant's
final Termination Date. In the case of any Participant who (a) commenced
employment with a Covered Employer, (b) terminated such employment, and (c)
prior to the Effective Date hereof, re-commenced employment with any Covered
Employer, such Participant shall be credited with Service Years for those
periods prior to the Effective Date hereof during which he was actually employed
by any Covered Employer notwithstanding the fact that such pre-Effective Date
employment with such covered Employer(s) was not continuous. Except as
otherwise provided in Section 3.04 hereof (concerning leaves of absence), it is
intended that a Participant shall cease earning Service Years upon his incurring
any Termination after the Effective Date hereof, regardless of whether such
Participant is thereafter employed by the Sponsor, an affiliate of the Sponsor
or any Affiliated Company. Notwithstanding the foregoing, in the case of a
Participant whose Termination is due to a Disability the period commencing with
such Disability and ending at the earliest of (i) attainment of age 65, (ii)
return to Full-Time Employment, or (iii) the death of the Participant shall
continue to be credited as Service Years.
2.25 SINGLE LIFE ANNUITY. "Single Life Annuity" means an annuity which
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provides a specified level monthly benefit until the death of the beneficiary.
2.26 SPECIFIED RATE. "Specified Rate" means an interest rate equal to 8% per
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annum, or such other annual interest rate as the Board may from time to time
designate as the Specified Rate, with any such designation to be given effect
only on a prospective basis.
2.27 SPONSOR. "Sponsor" means ▇▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation.
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2.28 SPOUSE. "Spouse" means, with respect to any Participant, only that
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person (if any) to whom such Participant is married as of such Participant's
Termination Date, provided, however, that a person who has been married to a
Participant for less than one year as of such Participant's Termination Date
shall not be deemed to be the "Spouse" of such Participant.
2.29 TERMINATION. "Termination" means the voluntary or involuntary
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termination of a Participant's employment with the Sponsor and all Affiliated
Companies for any reason (including Disability or death). The determination as
to whether a Participant's Termination constitutes Retirement shall be made by
the Board in accordance with the provisions of Section 2.23 hereof.
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2.30 TERMINATION DATE. "Termination Date" means, with respect to any
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Participant, the effective date of such Participant's Termination.
2.31 TERMINATION FOR CAUSE. "Termination for Cause" means, with respect to
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any Participant, a Termination incurred by such Participant as a result of any
one or more of the following causes:
(a) The Participant's substantial neglect of his duties and responsibilities
as an employee of the Sponsor or any Affiliated Company;
(b) The Participant's theft or other misappropriation of, or any malfeasance
with respect to, any property of the Sponsor or any Affiliated Company;
(c) A conviction of the Participant for any criminal offense, whether or not
involving property of the Sponsor or any Affiliated Company, but only if
the Board reasonably believes such conviction may adversely affect either
(i) the reputation of the Sponsor or any Affiliated Company, or (ii) the
Participant's ability to effectively perform his duties and
responsibilities as an employee of the Sponsor or any Affiliated Company;
(d) The Participant's use of illegal drugs or alcohol to an extent that such
use interferes with his ability to perform, in an acceptable manner, his
duties and responsibilities as an employee of the Sponsor or any
Affiliated Company;
(e) The Participant's solicitation of business on behalf of, or diversion of
business to, any competitor of the Sponsor or any Affiliated Company with
whom the Participant expects to become employed or otherwise associated
following such Participant's Termination.
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ARTICLE III
ADMINISTRATION OF THE PLAN
3.01 ADMINISTRATION. This Plan shall be administered by the Board of
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Directors, provided however, that the Board may, in its discretion, delegate the
administration of this Plan to a Committee composed of at least three
individuals appointed from time to time by the Board. Any member of the Board
or the Committee may be a Participant in this Plan, provided however, that any
action to be taken by the Board or Committee solely with respect to the
particular interest in this Plan of a Board or Committee member who is also a
Participant in this Plan shall be taken by the remaining members of the Board or
Committee.
3.02 BOARD AND COMMITTEE AUTHORITY; RULES AND REGULATIONS. The Board shall
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have discretionary authority to (a) make, amend, interpret and enforce all
appropriate rules and regulations for the administration of the Plan, and (b)
decide or resolve, in its discretion, any and all questions, including
interpretations of the Plan, as may arise in connection with the Plan. If a
Committee is appointed by the Board pursuant to Section 3.01 hereof to
administer the Plan, such Committee shall have authority to take or approve, in
its discretion, all such actions relating to the Plan (including, without
limitation, actions described in the preceding sentence) as may be taken or
approved by the Board; provided, however, that the Committee shall have no
authority (i) to approve executives for participation in the Plan, (ii) to
approve the terms of any Participation Agreement, (iii) to amend or terminate
the Plan, or (iv) to terminate a Participant's participation in the Plan
pursuant to Section 4.08 hereof. Notwithstanding the preceding sentence, the
Board may, by written notice to the Committee, withdraw all or any part of the
Committee's authority at any time, in which case such withdrawn authority shall
immediately revest in the Board. Any decision or action of the Board (and,
subject to the limitations set forth herein above, any decision or action of the
Committee, if appointed) in respect of any question arising out of or in
connection with the administration, interpretation and application of this Plan
and the rules and regulations promulgated hereunder shall be final, conclusive
and binding upon all persons having any interest in the Plan.
3.03 APPOINTMENT OF AGENTS. In the administration of this Plan, the Board
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and/or the Committee may from time to time employ agents (which may include
officers and/or employees
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of the Sponsor) and delegate to them such administrative duties as the Board or
the Committee (as applicable) deems appropriate.
3.04 LEAVE OF ABSENCE. In the event the Participant takes a leave of absence
----------------
from active employment with the Sponsor or any Affiliated Company, the Board
shall determine, in its discretion, (a) whether such leave of absence shall be
deemed to constitute a Termination for purposes of this Plan, and (b) if such
leave of absence is not deemed to constitute a Termination under this Plan,
whether such Participant shall continue to earn Service Years during such leave
of absence notwithstanding the provisions of Section 2.24 hereof. The Board
shall establish such standards and procedures as may be necessary so that, with
respect to any determinations made by the Board pursuant to either clause (a) or
clause (b) of the preceding sentence, Participants in substantially similar
circumstances shall be treated substantially alike.
3.05 ACTUARIAL ASSUMPTIONS. In any case in which it is necessary to make
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actuarial adjustments in order to carry out the provisions of this Plan
(including, without limitation, the provisions requiring the determination of an
actuarially equivalent benefit under Section 4.02 hereof), the following rules
shall apply:
(a) The interest/discount rate assumed in making such actuarial adjustments
shall be a fixed rate equal to the Specified Rate then in effect at the
time such actuarial adjustments are calculated; and,
(b) The mortality table used in making such actuarial adjustments shall be
the 1971 Unisex Group Annuity Table (85% of male rate and 15% of female
rate).
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ARTICLE IV
BENEFITS
4.01 ELIGIBILITY AND VESTING. Except as otherwise provided in Section 4.11
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and Article V hereof, upon incurring Termination, a Participant shall receive a
supplemental benefit under this Plan (a "Supplemental Benefit"), which
Supplemental Benefit shall be paid to the extent vested, in such form and
amounts, and at such times, as provided under this Plan. Notwithstanding the
foregoing, and except as otherwise provided in Sections 4.09 and 4.10 hereof, a
Participant who incurs a Termination shall be entitled to receive a Supplemental
Benefit under this Plan only to the extent such Participant is vested in such
Benefit. A Supplemental Benefit shall vest and become nonforfeitable up to a
maximum of 100% as follows:
SERVICE YEARS VESTED PERCENTAGE
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Less than 6 years 0%
6 years but less than 7 years 10%
7 years but less than 8 years 20%
8 years but less than 9 years 30%
9 years but less than 10 years 40%
10 years but less than 11 years 50%
11 years but less than 12 years 60%
12 years but less than 13 years 70%
13 years but less than 14 years 80%
14 years but less than 15 years 90%
15 or more years 100%
A Supplemental Benefit shall also be 100% vested upon the death of a
Participant.
4.02 FORM OF SUPPLEMENTAL BENEFIT. Any Participant who is entitled to a
----------------------------
Supplemental Benefit pursuant to Section 4.01 hereof shall receive such
Supplemental Benefit in the form of an annuity, which annuity shall provide a
series of level monthly payments for a period determined in accordance with the
rules set forth hereinbelow. With respect to any Participant, the amount of the
level monthly payment provided by such annuity (the "Monthly
IV-1
Annuity Amount") shall be determined in accordance with Section 4.04 hereof,
subject to such modifications as may be applicable under this Section 4.02:
(a) Except as provided in subsection (b) below, a Participant shall
receive his Supplemental Benefit in the Normal Benefit Form specified
in Section 2.18.
(b) A Participant who is entitled to receive a Supplemental Benefit may,
with the consent of the Board elect in writing, on such form
designated by the Plan Administrator and received by the Plan
Administrator at least 15 months prior to the Payment Commencement
Date, to receive his Supplemental Benefit in the form of a 50% Joint
and Survivor Annuity. Notwithstanding such election, such Participant
shall be entitled to receive his Supplemental Benefit in the form of a
50% Joint and Survivor Annuity only if such Participant has a spouse
as of such Participant's Termination Date and also has been married
continuously for at least the two years preceding such Participant's
Retirement Date. The amount of the Supplemental Benefit so designated
by the Participant shall be the Actuarial Equivalent of the amount
otherwise payable to the Participant in the Normal Benefit Form
pursuant to Section 2.18. If such election is not made or is invalid
or void, the Participant's Supplemental Benefit shall be paid in the
Normal Benefit Form specified in Section 2.18.
4.03 PAYMENT OF SUPPLEMENTAL BENEFIT. Notwithstanding any other provisions
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of this Plan, payment of a Participant's Supplemental Benefit (or any portion
thereof) shall commence on such Participant's Payment Commencement Date.
4.04 MONTHLY ANNUITY AMOUNT. Except to the extent modified pursuant to
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Sections 4.01 or 4.02 hereof, a Participant's "Monthly Annuity Amount" shall be
the amount of such Participant's Target Monthly Benefit (as defined in Section
4.05 hereof) reduced, but not below zero, by such Participant's Monthly Offset
Amount (as defined in Section 4.06 hereof).
4.05 TARGET MONTHLY BENEFIT. A Participant's "Target Monthly Benefit"
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shall be determined as of his Termination Date and shall be the amount
calculated by multiplying (a) the Participant's Average Monthly Compensation
determined as of his Termination Date, by (b) his Benefit Accrual Percentage
determined as of his Termination Date (or later date in the case of Disability)
by (c) his vesting percentage as of his Termination Date (or later date in the
case of Disability) under Section 4.01.
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4.06 MONTHLY OFFSET AMOUNT. A Participant's "Monthly Offset Amount" shall
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be the amount equal to the sum of (1) such Participant's Social Security Offset
Amount, plus (2) such Participant's Qualified Offset Amount (both as defined
herein below).
(a) A Participant's "Social Security Offset Amount" shall be determined in
accordance with the following rules:
(i) In the case of any Participant whose Termination constitutes
Normal Retirement, such Participant's Social Security Offset
Amount shall be 50% of the amount of the monthly Primary Social
Security Benefit (as calculated by the Board under paragraph
(iii) below) to which such Participant is entitled following
such Termination.
(ii) In the case of any Participant whose Termination does not
constitute Normal Retirement (either because such Termination
does not constitute Retirement or because such Termination
constitutes Early Retirement), such Participant's Social
Security Offset Amount shall be 50% of the amount of the
monthly Primary Social Security Benefit (as calculated by the
Board under paragraph (iii) below) to which such Participant
would be entitled commencing on his Normal Benefit Date paid to
such Participant in the Normal Benefit Form if, with respect to
the period (if any) between such Participant's Termination Date
and his Normal Benefit Date, (A) such Participant had continued
to earn a constant monthly salary equal to the Participant's
Compensation for the month immediately preceding the month of
such Participant's Termination, and (B) the Social Security
wage base and other provisions of the Social Security law
relevant to the determination of benefits thereunder (including
any applicable regulations and/or other pronouncements, such as
wage base and other provisions) in effect as of such
Participant's Termination Date had remained unchanged.
(iii) Each Participant shall submit to the Board, for use in
calculating such Participant's Primary Social Security Benefit
and the corresponding Social Security Offset Amount under
paragraphs (i) or (ii) above, as applicable, either (A) a
written earnings history obtained from the Social Security
Administration, or (B) written evidence satisfactory to the
Committee showing that, such Participant has never earned wages
subject to the jurisdiction of the U.S. Social Security system
(e.g., a foreign
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Participant with no U.S. wages). In the event a Participant
fails to comply with the requirements of the preceding sentence
within 90 days following such Participant's Payment
Commencement Date, the Participant's Primary Social Security
Offset Benefit (for purposes of calculating his Social Security
Offset Amount under paragraphs (i) or (ii) above, as
applicable) shall be determined by the Committee using an
estimated wage history, applying a salary scale projected
backwards from the Participant's Retirement Date, and based on
(I) for the two years prior to the Participant's Retirement
Date, an increase of six percent (6%) per annum, and (II) for
the period prior to such two year period, the actual change in
average wages from year to year as determined by the Social
Security Administration. Such estimated wage history shall be
deemed correct for all purposes of this Plan.
(b) A Participant's "Qualified Plan Offset Amount" shall be the sum of the
Defined Benefit Plan Offset Amount and the 401(k) Plan Offset Amount
determined with respect to such Participant under the following
provisions, as applicable:
(i) With respect to any Participant who was a Participant in the
Defined Benefit Plan, such Participant's "Defined Benefit Plan
Offset Amount" shall be the employer-provided portion (i.e.,
the portion attributable to employer contributions) of the
amount of the monthly annuity payment to which such Participant
would be entitled under the Defined Benefit Plan if his benefit
thereunder were paid in the Normal Benefit Form commencing on
his Normal Benefit Date. The "Defined Benefit Plan Offset
Amount" shall be zero with respect to any Participant who was
not a participant in the Defined Benefit Plan, or to any
Participant who would have become a participant in the Defined
Benefit Plan following the date such Plan's benefit accruals
were frozen.
(ii) With respect to any Participant, such Participant's "401(k)
Plan Offset Amount" shall be the amount of the monthly annuity
payment to which such Participant would be entitled if the
balance (determined as of such Participant's Payment
Commencement Date) in such Participant's 401(k) Offset Account
(as defined herein below) were paid to such Participant in the
Normal Benefit Form commencing on his Normal Benefit Date. For
purposes of this paragraph (ii), a Participant's "401(k) Offset
Account"
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shall be a hypothetical account established and maintained with
respect to such Participant as follows: A Participant's 401(k)
Offset Account shall be established as of December 31, 1995,
and such 401(k) Offset Account shall have an initial balance
equal to the actual balance (if any) as of December 31, 1995,
in the account maintained under the 401(k) Plan for employer
contributions made with respect to such Participant (excluding
any employer contributions not currently includible in gross
income by reason of Code Section 402(e)(3)). Thereafter (A)
commencing with the 1996 calendar year and ending with the
calendar year in which such Participant incurs a Termination
(the "Termination Year"), the balance in such Participant's
401(k) Offset Account shall be increased as of the end of each
such calendar year (or, in the case of the Termination Year, as
of such Participant's Termination Date) by the amount of such
Participant's Hypothetical Employer Contribution (as defined in
paragraph (iii) below) for such calendar year and the actual
employer profit sharing contribution made for such calendar
year with respect to such Participant under the terms of the
401(k) Plan; and (B) commencing January 1, 1996, and ending on
such Participant's Payment Commencement Date, such
Participant's 401(k) Offset Account shall also be increased as
if the balance in such account (as increased from time to time
by the Hypothetical Employer Contributions Described in Clause
(A) above) were earning interest, compounded annually, (I) from
January 1, 1996, until such Participant's Termination Date, at
the Specified Rate applicable from time to time, and (II) from
such Participant's Termination Date until his Payment
Commencement Date, at the Specified Rate in effect as of such
Participant's Termination Date.
(iii) As used in paragraph (ii) above, "Hypothetical Employer
Contribution" means, with respect to any Participant, (A) for
any calendar year prior to such Participant's Termination Year
the maximum employer matching contribution that would have been
made for such calendar year with respect to such Participant
under the terms of the 401(k) Plan (disregarding the limits
imposed by reason of Code Section 401(m)) assuming such
Participant's before-tax deferral to the 401(k) Plan for such
calendar year is equal to his Hypothetical Participant Deferral
(as defined in paragraph (iv) below) with respect to such
calendar year; and (B) for
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such Participant's Termination Year, an amount equal to the
product obtained by multiplying (i) the Hypothetical Employer
Contribution determined with respect to such Participant for
the immediately preceding calendar year, by (ii) a fraction
having a numerator equal to the number of days in such
Termination Year prior to and including such Participant's
Termination Date, and having a denominator equal to 365.
(iv) For purposes of paragraph (iii) above, the "Hypothetical
Participant Deferral" applicable to any Participant for any
calendar year shall be the amount determined under the
following provisions, whichever is applicable:
(A) If, with respect to any calendar year, the 401(k) Plan
administrative committee does not take any action, either
during or after the close of such year, to reduce the
level of Participant deferrals permitted to be made by any
401(k) Plan Participant for such year, then the
Hypothetical Participant Deferral with respect to any
Participant for such calendar year shall be the lesser of
(I) the maximum amount such Participant would be permitted
to contribute to the 401(k) Plan for such year under Code
Section 402(g), or (II) the maximum amount the Participant
would be permitted to contribute under the terms of the
401(k) Plan.
(B) If, with respect to any calendar year, the 401(k) Plan
administrative committee takes action during and/or after
such year to reduce the level of Participant deferrals
permitted to be made by any 401(k) Plan Participant for
such year, then the Hypothetical Participant Deferral with
respect to any Participant for such year shall be the
lesser of (I) the maximum amount such Participant would be
permitted to contribute to the 401(k) Plan for such year
under Code Section 402(g), or (II) the product determined
by multiplying such Participant's compensation for such
year (as determined under the 401(k) Plan for anti-
discrimination testing purposes), by the maximum "actual
deferral percentage" for any highly compensated employee
for such year (as determined under Code Section
401(k)(3)(B) after giving effect to any corrections made
following the close of such year)
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applicable to "highly-compensated employees" (as defined
in Code Section 414(q)).
4.07 SPECIAL RULES FOR EARLY RETIREMENT. In the case of any Participant
----------------------------------
who incurs Early Retirement, such Participant's Monthly Annuity Amount shall be
determined as provided in Section 4.04 hereof, and then shall be reduced to
reflect the commencement of benefits on a date earlier than the Normal Benefit
Date as follows:
(a) If the Participant's Early Retirement commences on or after the first
day of the month next following his sixty-second birthday, then the
reduction shall be 0.25% for each full month by which the date of
Early Retirement precedes the first day of the month next following
his attainment of age 65.
(b) If the Participant's Early Retirement commences prior to the first day
of the month next following his sixty-second birthday, then the
reduction shall be 9.00% (representing the reduction from age 65 to
age 62 described in paragraph (a) above) plus 0.50% for each full
month by which the date of Early Retirement precedes the first day of
the month next following his sixty-second birthday.
4.08 TERMINATION OF PLAN PARTICIPATION. In the event that the Board of
---------------------------------
Directors determines that a Participant's employment performance is no longer at
a level which merits continued participation in the Plan, the Board may
terminate such Participant's participation in the Plan (without necessarily
terminating such Participant's employment) as of the date specified by the Board
(the "Participation Severance Date"). Accordingly, notwithstanding any other
provision of this Plan, the Supplemental Benefit payable to any Participant
whose Plan participation is terminated pursuant to this Section 4.08 shall be
calculated by taking into account, in determining the amount of such
Participant's Target Monthly Benefit and whether such Participant has met the
vesting requirement of Section 4.01 hereof, only the Service Years and
Compensation earned by such Participant as of his Participation Severance Date.
Such Supplemental Benefit shall be paid to the Participant pursuant to the
provisions of Section 4.03 herein.
4.09 DISABILITY. In the event that a Participant incurs a Termination as a
----------
result of such Participant's becoming Disabled, the Supplemental Benefit payable
to such Participant under this Plan shall be determined with regard to the
vesting requirement of Section 4.01 hereof assuming Service Years continue to
accrue until the earliest of (a) age 65, (b) return to Full-Time Employment, or
(c) the death of the Participant. For purposes of this Plan, a Participant
shall be
IV-7
deemed to be "Disabled" if and when, as a result of injury or sickness, such
Participant is permanently impaired to such an extent that he cannot perform,
and is not reasonably expected ever to be able to perform, each of the material
duties of his position of employment with the Sponsor or any Affiliated Company.
For the purpose of determining whether a Participant is Disabled, the Board may
require the Participant to submit to an examination by a competent physician or
medical clinic selected by the Board.
4.10 CHANGE OF CONTROL. Notwithstanding any other provision of this Plan,
-----------------
upon a Change in Control, all Participants in the Plan shall be fully vested in
their Supplemental Benefits. All Participants shall be entitled to the
Supplemental Benefit they would otherwise receive pursuant to this Article IV
hereof. Upon and following a Change of Control, no Participant shall be removed
from the Plan, nor shall his benefit be terminated, modified, reduced or
eliminated without his express written consent.
4.11 TERMINATION FOR CAUSE. Notwithstanding any other provision of this
---------------------
Plan except Section 4.10, a Participant who incurs a Termination for Cause prior
to a Change of Control shall not be entitled to a Supplemental Benefit,
regardless of Service Years, under this Plan.
IV-8
ARTICLE V
DEATH OF A PARTICIPANT
5.01 TERMINATION BY REASON OF DEATH. In the event that a Participant
------------------------------
incurs a Termination by reason of his death, (a) such Participant shall not be
entitled to receive a Supplemental Benefit under this Plan, and (b) if such
Participant has a Spouse at the time of his death, such Participant's Spouse
(the "Surviving Spouse") shall be entitled to receive a special benefit (a
"Death Benefit") at the times and in the amounts set forth in this Article V. No
Death Benefit shall be paid in respect of any Participant who does not have a
Spouse at the time of his death.
5.02 FORM AND PAYMENT OF DEATH BENEFIT. A Surviving Spouse who is
---------------------------------
entitled to receive a Death Benefit pursuant to Section 5.01 hereof shall
receive such Death Benefit in the form of a Single Life Annuity which provides a
level monthly payment equal to the Monthly Death Benefit Amount specified in
Section 5.03 hereof. Except as otherwise provided hereinbelow, payment of a
Surviving Spouse's Death Benefit shall commence on the ninetieth (90th) day (the
"Death Benefit Commencement Date") after the Participant's death.
5.03 MONTHLY DEATH BENEFIT AMOUNT. The "Monthly Death Benefit Amount"
----------------------------
applicable to any Surviving Spouse shall be an amount equal to the Monthly
Annuity Amount of the Supplemental Benefit that would have been payable to the
deceased Participant under Article IV hereof if such Participant had incurred a
Retirement on the day prior to his death, provided, however, that the
determination of such Monthly Annuity Amount shall take into account the
following assumptions and special rules:
(a) Such Monthly Annuity Amount shall be determined assuming the
Participant would have received his Supplemental Benefit in the Normal
Benefit Form, modified, if applicable, by the provisions of Section
4.07 hereof.
(b) Such Monthly Annuity Amount shall be determined as if the Participant
was 100% vested in the Supplemental Benefit.
(c) The Payment Commencement Date used in determining such Monthly Annuity
Amount shall be deemed to be the Surviving Spouse's Death Benefit
V-1
Commencement Date (disregarding any provision in Article IV to the
contrary), and if the deceased Participant's death caused Early
Retirement, the provisions of Section 4.07 hereof shall be applied in
determining the deceased Participant's Monthly Annuity Amount after
first determining the amount of the Defined Benefit Plan Offset Amount
pursuant to subsection (c) above.
V-2
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 PAYMENTS DURING INCAPACITY. In the event a Participant (or
--------------------------
Beneficiary) is under mental or physical incapacity at the time of any payment
to be made to such Participant (or Beneficiary) pursuant to this Plan, any such
payment may be made to the conservator or other legally appointed personal
representative having authority over and responsibility for the person or estate
of such Participant (or Beneficiary), as the case may be, and for purposes of
such payment references in this Plan to the Participant (or Beneficiary) shall
mean and refer to such conservator or other personal representative, whichever
is applicable. In the absence of any lawfully appointed conservator or other
personal representative of the person or estate of the Participant (or
Beneficiary), any such payment may be made to any person or institution that has
apparent responsibility for the person and/or estate of the Participant (or
Beneficiary) as determined by the Committee. Any payment made in accordance with
the provisions of Section 6.01 to a person or institution other than the
Participant (or Beneficiary) shall be deemed for all purposes of this Plan as
the equivalent of a payment to such Participant (or Beneficiary), and the
Sponsor shall have no further obligation or responsibility with respect to such
payment.
6.02 PROHIBITION AGAINST ASSIGNMENT. Except as otherwise expressly
------------------------------
provided in Section 6.01 hereof, the rights, interests and benefits of a
Participant under this Plan (a) may not be sold, assigned, transferred, pledged,
hypothecated, gifted, bequeathed or otherwise disposed of to any other party by
such Participant or any Beneficiary, executor, administrator, heir, distributee
or other person claiming under such Participant, and (b) shall not be subject to
execution, attachment or similar process. Any attempted sale, assignment,
transfer, pledge, hypothecation, gift, bequest or other disposition of such
rights, interests or benefits contrary to the foregoing provisions of this
Section 6.02 shall be null and void and without effect.
6.03 BINDING EFFECT. The Provisions of this Plan shall be binding upon the
--------------
Sponsor, the Participants, all Affiliated Companies employing any Participants,
and any successor-in-interest to the Sponsor.
6.04 NO TRANSFER OF INTEREST. Benefits under this Plan shall be payable
-----------------------
solely from the general assets of the Sponsor (and, with respect to any
Participant who is an employee of an Affiliated Company, also from the general
assets of such Affiliated Company), and no person
VI-1
shall be entitled to look to any other source for payment of such benefits. The
Sponsor (and, if applicable, any Affiliated Company) shall have and possess all
title to, and beneficial interest in, any and all funds or reserves maintained
or held by the Sponsor (or such Affiliated Company) on account of any obligation
to pay benefits as required under this Plan, whether or not earmarked as a fund
or reserve for such purpose; any such funds, other property or reserves shall be
subject to the claims of the creditors of the Sponsor (or such Affiliated
Company), and the provisions of this Plan are not intended to create, and shall
not be interpreted as vesting, in any Participant, Beneficiary or other person,
any right to or beneficial interest in any such funds, other property or
reserves. Nothing in this Section 6.04 shall be construed or interpreted as
prohibiting or restricting the establishment of a grantor trust within the
meaning of Code Section 671 which is unfunded for purposes of Sections 201(2),
301(a)(3), and 401(a)(l) of ERISA, from which benefits under this Plan may be
payable.
6.05 AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors may
------------------------------------
amend this Plan from time to time in any respect that it deems appropriate or
desirable, and the Board may terminate this Plan at any time; provided, however,
that any such amendment or termination may not, without the written consent of a
Participant, eliminate or reduce the Supplemental Benefit that has accrued with
respect to such Participant as of the effective date of such amendment or
termination. For purposes of this Section 6.05, the Supplemental Benefit that
has accrued with respect to any Participant as of the date of any amendment of
termination of the Plan shall be deemed to be the Supplemental Benefit to which
such Participant would be entitled pursuant to Article IV hereof if such
Participant incurred Retirement immediately prior to such Plan amendment or Plan
termination.
6.06 NO RIGHT TO EMPLOYMENT. This Plan is voluntary on the part of the
----------------------
Sponsor and its Affiliated Companies, and the Plan shall not be deemed to
constitute an employment contract between any Participant and the Sponsor or any
Affiliated Company, nor shall the adoption or existence of the Plan or any
provision contained in the Plan be deemed to be a required condition of the
employment of any Participant. Nothing contained in this Plan shall be deemed
to give any Participant the right to continued employment with the Sponsor or
any Affiliated Company, and the Sponsor and its Affiliated Companies may
terminate any Participant at any time, in which case the Participant's rights
arising under this Plan shall be only those expressly provided under the terms
of this Plan.
6.07 NOTICES. All notices, requests, or other communications (hereinafter
-------
collectively referred to as "Notices") required or permitted to be given
hereunder or which are given with
VI-2
respect to this Plan shall be in writing and may be personally delivered, or may
be deposited in the United States mail, postage prepaid and addressed as
follows:
To the Sponsor any Affiliated ▇▇▇▇▇▇▇▇▇ Corporation
Company or the Committee at: Attention: Board of Directors
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
To Participant at: The Participant's residential
mailing address as reflected in the
Sponsor's or Affiliated Company's
employment records
A Notice which is delivered personally shall be deemed given as of the date
of personal delivery, and a Notice mailed as provided herein shall be deemed
given on the second business day following the date so mailed. Any Participant
may change his address for purposes of Notices hereunder pursuant to a Notice to
the Committee, given as provided herein, advising the Committee of such change.
The Sponsor, any Affiliated Company and/or the Committee may at any time change
its address for purposes of Notices hereunder.
6.08 GOVERNING LAW. This Plan shall be governed by, interpreted under, and
-------------
construed and enforced in accordance with the internal laws, and not the laws
pertaining to conflicts or choice of laws, of the State of California applicable
to agreements made and to be performed wholly within the State of California.
6.09 TITLES AND HEADINGS; GENDER OF TERMS. Article and Section headings
------------------------------------
herein are for reference purposes only and shall not be deemed to be part of the
substance of this Plan or in any way to enlarge or limit the meaning or
interpretation of any provision in this Plan. Use in this Plan of the
masculine, feminine or neuter gender shall be deemed to include each of the
omitted genders wherever the context so requires.
6.10 SEVERABILITY. In the event that any provision of this Plan is found
------------
to be invalid or otherwise unenforceable by a court or other tribunal of
competent jurisdiction, such invalidity or unenforceability shall not be
construed as rendering any other provision contained herein invalid or
unenforceable, and all such other provisions shall be given full force and
effect to the same extent as though the invalid and unenforceable provision was
not contained herein.
6.11 TAX EFFECT OF PLAN. Neither the Sponsor nor any Affiliated Company
------------------
warrants any tax benefit nor any financial benefit under the Plan. Without
limiting the foregoing, the Sponsor and each Affiliated Company and their
directors, officers, employees and agents shall
VI-3
be held harmless by the Participant from, and shall not be subject to any
liability on account of, any Federal or State tax consequences or any
consequences under ERISA of any determination as to the amount of Plan benefits
to be paid, the method by which Plan benefits are paid, the persons to whom Plan
benefits are paid, or the commencement or termination of the payment of Plan
benefits.
6.12 ENTIRE AGREEMENT. The Plan represents the entire agreement regarding
----------------
nonqualified retirement benefits provided by Sponsor to each Participant.
Further, the Plan supersedes all Participant benefits or accruals under the
▇▇▇▇▇▇▇▇▇ Corporation Supplemental Benefit Plan and the ▇▇▇▇▇▇▇▇▇ Corporation
Excess Benefit Plan.
IN WITNESS WHEREOF, the Sponsor has caused this Plan to be executed by its
duly authorized officer effective as of the Effective Date hereof.
▇▇▇▇▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title President and Chief Executive Officer
---------------------------------------
VI-4