Exhibit 10
TRUST AGREEMENT
UNDER
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM
FOR OFFICERS OF AMERICAN AIRLINES, INC.
PARTICIPATING IN THE $UPER $AVER PLUS PLAN
Adopted September 15, 2005
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS 2
Section 1.1. Account 2
Section 1.2. Actuary 2
Section 1.3. Beneficiary 2
Section 1.4. Code 2
Section 1.5. Committee 2
Section 1.6. Corporation 2
Section 1.7. Expense Account 2
Section 1.8. Fund 2
Section 1.9. Investment Manager 2
Section 1.10. Participant 3
Section 1.11. Plan 3
Section 1.12. $uper $aver Plus Plan 3
Section 1.13. Supplemental $uper $aver Plus Plan 3
Section 1.14. Trust 3
Section 1.15. Trustee 3
Section 1.16. Valuation Date 3
ARTICLE II - CREATION, PURPOSE AND ADMINISTRATION OF THE TRUST 3
Section 2.1. Purpose of the Trust; Separate Trust 3
Section 2.2. Administration of the Trust 4
Section 2.3. Irrevocable; Not Subject to Creditor Claims 4
Section 2.4. Secured Interest; Separate Account 4
ARTICLE III - ACCOUNTS 4
Section 3.1. Fund and Accounts 4
Section 3.2. Written Certifications Provided by Corporation to the
Trustee 5
Section 3.3. Benefits Payable 5
Section 3.4. Account Adjustment 5
Section 3.5. Maintenance of Accounts 6
Section 3.6. Taxability of Trust and the Participants 6
Section 3.7. Accumulation/Distribution of Trust Income 7
Section 3.8. Contributions by the Corporation for Income Taxes 7
ARTICLE IV - CONTRIBUTIONS, CERTIFICATIONS AND DISTRIBUTIONS 7
Section 4.1. Contributions to the Trust 7
Section 4.2. Provision of Benefits is Binding Obligation of Corporation 7
Section 4.3. Provision of Reports and Written Certifications by the
Corporation to the Trustee 7
Section 4.4. Distributions to Participants 8
ARTICLE V - ACTUARY 8
Section 5.1. Determination of Corporation's Fund Contributions by
Actuary 8
Section 5.2. Resignation/Removal of Actuary 8
ARTICLE VI - INVESTMENTS AND POWERS OF THE TRUSTEE 9
Section 6.1. Fund Held in Trust 9
Section 6.2. Types of Investments 9
Section 6.3. Powers and Authority of Trustee 10
Section 6.4. Investment of Fund by Investment Manager 12
Section 6.5. Making Benefit Payments Upon Retirement or Employment
Termination 13
Section 6.6. Deposit of Contributions by Trustee 13
Section 6.7. Dealings with the Trustee 13
Section 6.8. Use of Fund Assets to Pay Trust Expenses 14
ARTICLE VII - DUTIES OF THE TRUSTEE 14
Section 7.1. General Duties of the Trustee 14
Section 7.2. Valuation of Fund 14
Section 7.3. Reports and Records 14
Section 7.4. No Duty to Advance Funds or to Administer the
Supplemental $uper $aver Plus Plan 16
Section 7.5. Resignation/Removal of Trustee 16
ARTICLE VIII - COMPENSATION, IMMUNITIES AND INDEMNITY OF THE TRUSTEE 17
Section 8.1. Trustee Compensation and Expenses 17
Section 8.2. Expense Account 17
Section 8.3. Immunities 17
Section 8.4. Indemnity of the Trustee 18
Section 8.5. Determination of Interests in the Fund, Enforcement of
Trust and Legal Proceedings 19
ARTICLE IX - AMENDMENT AND TERMINATION OF THE TRUST 19
Section 9.1. Amendment of Agreement 19
Section 9.2. Termination of Agreement 19
ARTICLE X - THE COMMITTEE 20
Section 10.1. Membership and Actions of the Committee 20
Section 10.2. Committee Compensation and Expenses 20
Section 10.3. Indemnity of Committee 21
ARTICLE XI - MISCELLANEOUS 21
Section 11.1. Governing Law 21
Section 11.2. No Effect on Employment 21
Section 11.3. Successors 21
Section 11.4. Severability 22
Section 11.5. Incorporation of Plan as Part of Agreement 22
Section 11.6. Execution in Counterparts 22
Section 11.7. Effect of Divisions and Captions 22
Section 11.8. Gender and Number 22
TRUST AGREEMENT
UNDER
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM
FOR OFFICERS OF AMERICAN AIRLINES, INC.
PARTICIPATING IN THE $UPER $AVER PLUS PLAN
THIS AGREEMENT (the "Agreement") is made and entered into
effective as of the 15th day of September, 2005 (the "Effective
Date"), by and between AMERICAN AIRLINES, INC. (the
"Corporation"), a corporation organized and existing under the
laws of the State of Delaware, and WACHOVIA BANK, NATIONAL
ASSOCIATION (the "Trustee"), a national association organized and
existing under the laws of the United States, and the individuals
constituting the Committee described in Section 10.1 hereof (the
"Committee").
RECITALS
WHEREAS, in January 1985, the Board of Directors of AMR
Corporation established the Supplemental Executive Retirement
Program for Officers of American Airlines, Inc., as subsequently
amended (the "Plan"), a copy of which is attached hereto as
Exhibit A and made a part of this Agreement for all purposes, in
part, for the purpose of paying under the Plan supplemental
retirement benefits to certain officers of the Corporation who
are participants (the "Participants") in AMR Corporation's $uper
$aver Plus Plan, a copy of which is attached hereto as Exhibit B
and made a part of this Agreement for all purposes (such
supplemental benefit scheme under the Plan to be referred to
herein as the "Supplemental $uper $aver Plus Plan"); and
WHEREAS, the Supplemental $uper $aver Plus Plan has not been
funded to date for the benefit of the Participants; and
WHEREAS, the Corporation seeks to establish an irrevocable
trust to fund retirement benefits of the Participants of the
Supplemental $uper $aver Plus Plan; and
WHEREAS, the Corporation desires the Trustee to be
responsible for the protection and conservation of the assets of
the Trust, and the Trustee is willing to undertake such
responsibility under the terms of the Agreement; thus, the
Corporation will deliver assets to the Trustee to hold in trust
for the purpose of accumulating funds to pay benefits under the
Supplemental $uper $aver Plus Plan as they become due and
payable; and
WHEREAS, the Corporation desires for the Committee to be
responsible for the administration of the Trust, and the
individuals identified in Schedule B have agreed to serve as the
Committee responsible for the administration of the Trust and are
willing to undertake the responsibility and duties of the
Committee pursuant to the terms of the Agreement; and
WHEREAS, the Corporation intends the Trust to operate as a
secular trust for Federal income tax purposes, whereby the
Participants will be subject to current taxation on the funds
held in the Trust; and
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WHEREAS, the trust established by this Agreement is not
intended to be a "grantor trust" pursuant to Sections 671 through
679 of the Internal Revenue Code of 1986, as amended (the
"Code"), but is intended to be a taxable trust pursuant to
Sections 641 et seq. of the Code.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the Corporation, the Trustee and the Committee
hereby agree as follows.
ARTICLE I
DEFINITIONS
Each word or phrase used herein which is in quotations shall
have the meaning set forth in this Article I, unless a different
meaning is clearly required by context.
Section 1.1. Account. "Account" means the separate
account established and maintained under the Fund with respect to
each Participant to provide a source of funds for the benefits
payable by the Corporation to, or with respect to, each such
Participant under the Supplemental $uper $aver Plus Plan.
Section 1.2. Actuary. "Actuary" means the then acting
actuary or firm of actuaries employed by the Corporation to
advise the Corporation with respect to contributions to be made
under the Supplemental $uper $aver Plus Plan. The initial
Actuary shall be Towers, Perrin, Forster & Crosby, Inc. and
Subsidiaries.
Section 1.3. Beneficiary. "Beneficiary" holds the
identical definition of the term as defined in the Plan.
Section 1.4. Code. "Code" means the Internal Revenue Code
of 1986, as amended.
Section 1.5. Committee. "Committee" means the
committee of persons to whom the Corporation has delegated the
responsibility of the Trust's administration.
Section 1.6. Corporation. "Corporation" means American
Airlines, Inc. and any successor thereto, or to the business
thereof, by whatever form or manner resulting.
Section 1.7. Expense Account. "Expense Account" means a
separate account of the Fund whereby the Corporation may make
contributions to be utilized by the Trustee to pay the
compensation, fees and expenses of the Trustee and the Committee
and other expenses of the Trust.
Section 1.8. Fund. "Fund" means the money and property
held by the Trustee under this Agreement.
Section 1.9. Investment Manager. "Investment Manager"
means the then acting manager of all or any of the assets of the
Fund that is appointed by the Committee to exercise investment
responsibility with respect to all or such portion of the Fund as
determined by the Committee.
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Section 1.10. Participant. "Participant" means a
"Participant" in the Plan as defined in the Plan who is a
participant of the $uper $aver Plus Plan, and thus, a participant
of the Supplemental $uper $aver Plus Plan as referred to herein.
Attached hereto as Schedule A is a list of the names of the
Participants of the Supplemental $uper $aver Plus Plan as of the
Effective Date of this Agreement. The Corporation will revise
the list from time to time to reflect changes in the identity of
the Participants of the Supplemental $uper $aver Plus Plan.
Section 1.11. Plan. "Plan" means the Supplemental
Executive Retirement Program for Officers of American Airlines,
Inc. originally effective January 1, 1985, and as amended from
time to time, including certain retirement benefits heretofore
authorized and which may hereafter be authorized to be payable to
certain employees of the Corporation.
Section 1.12. $uper $aver Plus Plan. "$uper $aver Plus
Plan" means the plan referred to as "$uper Saver Plus" under
$uper $aver, A 401(k) Capital Accumulation Plan for Employees of
Participating AMR Corporation Subsidiaries, originally effective
July 1, 1988, and as amended from time to time.
Section 1.13. Supplemental $uper $aver Plus Plan.
"Supplemental $uper $aver Plus Plan" means the benefit scheme
under the Plan whereby supplemental benefits are afforded to
officers of the Corporation who are participants of the $uper
$aver Plus Plan.
Section 1.14. Trust. "Trust" means the trust provided
for under this Agreement.
Section 1.15. Trustee. "Trustee" means the then acting
trustee of the Trust. The initial trustee of the Trust is
Wachovia Bank, National Association.
Section 1.16. Valuation Date. "Valuation Date" means (i)
the last business day of each calendar quarter; (ii) in the case
of a Participant who retires or whose employment with the
Corporation is terminated for any reason, the last business day
of the calendar month coincident with or immediately preceding
the date of such retirement or termination; and (iii) each other
date or dates specified by the Committee to the Trustee for the
valuation of the Fund and adjustment of Accounts.
ARTICLE II
CREATION, PURPOSE AND
ADMINISTRATION OF THE TRUST
Section 2.1. Purpose of the Trust; Separate Trust. This
Trust is established by the Corporation, the Trustee and the
Committee for the purpose of accumulating funds to pay benefits
under the Supplemental $uper $aver Plus Plan. Payments from the
Fund to Participants or their Beneficiaries shall be in discharge
of the Corporation's liability under the terms of the
Supplemental $uper $aver Plus Plan under the Plan to such
Participants to the extent such benefits are paid from the Fund.
The Corporation intends that each Account established pursuant to
Article III be treated as a separate trust designed to satisfy,
in whole or in part, the Corporation's liability under the
Supplemental $uper $aver Plus Plan to the Participant with
respect to whose benefit such Account is maintained.
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Section 2.2. Administration of the Trust. The Committee
shall be solely responsible for the administration of the Trust.
The Committee shall, upon request of the Trustee, furnish the
Trustee with such reasonable information as is necessary or
appropriate for the Trustee to carry out its responsibilities
under this Agreement, and the Trustee shall be entitled to rely
conclusively on the information received from the Committee. The
Corporation shall be responsible for the administration of the
Supplemental $uper $aver Plus Plan. The Corporation shall, upon
request of either the Committee or the Trustee, furnish each of
the Committee and the Trustee with such reasonable information as
each of the Committee or the Trustee shall deem necessary or
appropriate to carry out the intent and purposes of the Trust,
and each of the Committee and the Trustee shall be entitled to
rely conclusively on the information received from the
Corporation, unless, in the case of the Trustee, the Committee
has informed the Trustee in writing not to rely on such
information.
Section 2.3. Irrevocable; Not Subject to Creditor Claims.
Subject to the provisions of Section 9.2 hereof, this Trust shall
be irrevocable. In addition, the Fund shall not be subject to
the claims of the creditors of the Corporation in a bankruptcy or
other insolvency proceeding under Federal or state law, but shall
be maintained for the exclusive purpose of providing benefits to
Participants under the Supplemental $uper $aver Plus Plan.
Section 2.4. Secured Interest; Separate Account. Each
Participant shall have a secured interest in the Account
maintained in the Fund with respect to the benefits payable under
the Supplemental $uper $aver Plus Plan. Each Participant's
Account will be maintained as a separate account within the
meaning of Section 404(a)(5) of the Code. The Corporation agrees
that during the existence of the Trust, the Corporation shall not
permit or cause, or amend this Agreement to permit or cause, the
Fund, or any part hereof, to be used for or diverted to purposes
other than the payment of benefits under the Supplemental $uper
$aver Plus Plan to Participants and their Beneficiaries.
ARTICLE III
ACCOUNTS
Section 3.1. Fund and Accounts.
(a) The Fund under this Trust shall consist of such
sums of money or other property (and the earnings thereon)
as shall from time to time be paid or delivered to the
Trustee and held by it pursuant to the terms of this
Agreement. Simultaneously with the execution of this
Agreement, the Corporation shall deposit TWENTY NINE
THOUSAND FIVE HUNDRED SIXTY SIX DOLLARS ($29,566), which
shall become the initial principal of the Fund.
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(b) At the time the Corporation makes an initial
contribution to the Trust with respect to the benefits of a
Participant, it shall notify the Trustee of such fact and an
Account shall be established by the Trustee under the Fund
with respect to such Participant and the amount so
contributed or directed to be allocated shall be credited to
such Account. Any subsequent contributions to the Trust
with respect to the benefits of such Participant also shall
be credited to such Account. The Corporation shall provide
the Trustee with such information or reports as are
necessary to credit contributions to the Account maintained
with respect to each Participant in accordance with Section
4.3 hereof.
Section 3.2. Written Certifications Provided by
Corporation to the Trustee. Subject to this Section 3.2, the
Trustee shall have responsibility for the maintenance of Account
records, including, without limitation, the responsibility for
making determinations regarding the adjustment of such Accounts
under Section 3.4 hereof. The Corporation shall provide the
Trustee from time to time, but not less frequently than annually,
with written certifications pursuant to Section 4.3 hereof
concerning the amount and form of benefits payable to each
Participant under the Supplemental $uper $aver Plus Plan and the
time or times when such benefits shall become payable. Each such
certification shall state that it is made in accordance with the
terms of the Supplemental $uper $aver Plus Plan under the Plan,
is binding on the Trustee, and may not be modified, amended or
rescinded in any manner whatsoever, except by a subsequent
certification which complies with the requirements of Section 4.3
hereof. The Trustee shall not be bound by, and shall ignore, any
such certification which does not comply with the requirements of
Section 4.3 hereof. The Trustee shall make payments to
Participants and Beneficiaries strictly in accordance with the
terms of Section 4.4 hereof and shall have no responsibility or
duty to evaluate such certifications or other reports with
respect to their validity, accuracy or completeness or to make
any inquiry regarding the data or information contained therein.
If the Corporation does not provide the Trustee with the
information necessary to establish an Account pursuant to this
Section 3.2 and Section 4.3 hereof, the Trustee shall deposit any
contributions for which it has not received information into the
Expense Account, and shall maintain the contributions in the
Expense Account until it has received such information.
Section 3.3. Benefits Payable. Any benefits becoming
payable under the Supplemental $uper $aver Plus Plan to a
Participant or Beneficiary shall be paid from the Fund and
charged against the Account maintained with respect to the
benefits of such Participant. No payment shall be made from the
Fund to or with respect to a Participant to the extent that such
payment would exceed the balance then remaining in the Account
maintained with respect to such Participant.
Section 3.4. Account Adjustment. As of each Valuation
Date, and based upon the results of its valuation of the Fund as
of such Valuation Date, the Trustee shall adjust each Account to
reflect the realized and unrealized gains and losses and the
income and expenses of the Fund on an accrual basis since the
preceding Valuation Date. Such adjustments shall be made on the
basis of the relative balance in each Account immediately after
the adjustment made as of the preceding Valuation Date, reduced
by any benefits charged thereto under Section 3.3 hereof since
such preceding Valuation Date, and increased by any contribution
made to the Fund under Sections 3.8 and 4.1 hereof since the
preceding Valuation Date. As of any date other than a Valuation
Date, the balance of any Account shall be the balance of such
Account as of the preceding Valuation Date, reduced by any
benefit payments charged thereto under Section 3.3 hereof since
the preceding Valuation Date and increased by any contributions
credited thereto under Sections 3.8 and 4.1 hereof since the
preceding Valuation Date.
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Section 3.5. Maintenance of Accounts. Once established,
an Account shall be maintained with respect to the benefits of
each Participant until it has been liquidated through
distribution to the Participant, or a Beneficiary thereof.
Section 3.6. Taxability of the Trust and the Participants.
(a) It is intended that the Trust not constitute a
"grantor trust" under Sections 671 through 679 of the Code,
and, notwithstanding any provision of this Agreement to the
contrary, the Corporation, as the grantor of the Trust,
shall not possess any power under this Agreement that would
cause the Trust to constitute a "grantor trust." It is
intended that the Trust constitute a taxable entity under
Sections 641 et. seq. of the Code. Accordingly, the Trustee
acknowledges and agrees that the Corporation is not the
owner of the Trust for Federal income tax purposes.
Notwithstanding any provision of this Agreement to the
contrary, none of the powers granted to the Trustee shall be
construed to enable the Corporation, the Trustee or anyone
else, to buy, exchange or otherwise deal with the Fund for
less than adequate and full consideration in money or
money's worth, or to enable the Corporation, the Trustee or
any entity in which the Corporation, the Trustee, or both,
have a substantial interest, to borrow from the Fund,
directly or indirectly, without adequate interest or
security; no one but the Trustee (or the Investment Manager)
may vote or direct the vote of any corporate shares or other
securities of the Trust, or control the Trust's investments
or reinvestments by substituting other property of equal
value; the Trustee is not required to surrender Trust assets
upon being tendered substitute assets, regardless of the
relative values of the assets involved.
(b) The Trust is a funded trust and, as such, it
is intended that each Participant in respect of whom an
Account is maintained be taxed in accordance with Section
402(b) of the Code. Consequently, contributions to the
Trust by the Corporation shall be taxable to the
Participants in accordance with Section 402(b)(1) of the
Code. (The Corporation shall take a deduction for the
amount of such contributions, for United States federal
income tax purposes, in accordance with Section 404(a)(5) of
the Code.) Except as is necessary to satisfy the Trust's
obligation upon a distribution to withhold taxes and to pay
over such withheld amounts to the appropriate taxing
authorities, the Trust shall not have any obligation or
liability for the payment of any income, estate, gift or
employment taxes payable by a Participant or Beneficiary, or
the estate of a Participant or Beneficiary, with respect to
benefits payable under the Supplemental $uper $aver Plus
Plan. The Trustee shall have the sole responsibility to
file any tax returns, reports or other information as may be
required by any Federal, state, local or other taxing or
governmental authority with respect to the Trust, its income
and distributions and withholding therefrom. The
Corporation shall be liable for the payment of employment
taxes due as a result of contributions made by the
Corporation on behalf of a Participant (and the filing of
any tax returns, reports or other information as required
with respect to such payments).
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Section 3.7. Accumulation/Distribution of Trust Income.
All of the income and gain derived from the Fund shall be
accumulated and allocated to the Accounts of the Participants
pursuant to Section 3.4 hereof; provided, however, that the
Committee shall have the right, in its sole and absolute
discretion, to instruct the Trustee to distribute all or a
portion of such income and gain from the Participants' respective
Accounts to the Participants.
Section 3.8. Contributions by the Corporation for Income
Taxes. If the income and gain derived by the Trust in any
taxable year is subject to United States Federal, state or local
income tax (e.g., because the Committee has elected not to
distribute such income and gain to the Participants) the Trustee
shall pay such income taxes from the Fund except to the extent
that the Corporation contributes to the Trust an amount to enable
the Trustee to pay such income taxes. To the extent such taxes
are paid from the Fund, the Accounts shall be reduced on a pro-
rata basis.
ARTICLE IV
CONTRIBUTIONS, CERTIFICATIONS AND DISTRIBUTIONS
Section 4.1. Contributions to the Trust. The Corporation
may make such contributions to the Trust as it shall determine in
its sole and absolute discretion, are necessary to provide
benefits to the Participants under the Supplemental $uper $aver
Plus Plan and for the Trust to pay any income taxes due on its
income and gain (as provided in Section 3.8 hereof).
Notwithstanding anything to the contrary contained herein, no
person, including, without limitation, the Trustee, the Actuary,
any Participant or former Participant, or any Beneficiary
thereof, shall have the right to require the Corporation to make
any contribution to the Trust or to question the accuracy or
correctness of any amounts so contributed.
Section 4.2. Provision of Benefits is Binding Obligation
of Corporation. Except to the extent that benefits to which a
Participant, or the Beneficiary thereof, is entitled under the
Supplemental $uper $aver Plus Plan are actually paid from the
Fund, nothing contained in this Agreement shall relieve the
Corporation of its obligations under the Supplemental $uper $aver
Plus Plan to or with respect to such Participant.
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Section 4.3. Provision of Reports and Written
Certifications by the Corporation to the Trustee. The
Corporation shall maintain, and furnish the Trustee with, such
reports, documents, and information as shall be required by the
Trustee to carry out its obligations under this Agreement,
including, without limitation, written reports setting forth the
identity of Participants with respect to whose benefits
contributions are made to the Trust and the amount of such
contributions, and the written certifications regarding
Participants' benefits described below. At or about the time an
Account is established with respect to the benefits of a
Participant, the Corporation shall furnish the Trustee with a
written certification which includes the amount of the
Participant's benefits, the time or times as of which such
benefits shall become payable, the present value of such benefits
as of a specific date or dates, any conditions which must be
satisfied in order for the Participant to become entitled to such
benefits, and the identity of the Participant's Beneficiary and
the specific conditions under which benefits shall become payable
to such Beneficiary. Such certifications may be revised by the
Corporation at any time, and from time to time, to reflect, among
other things, entitlement of the Participant to increased
benefits or an earlier time of payment under the Supplemental
$uper $aver Plus Plan and to reflect changes in Beneficiary
designations by the Participant. No certification shall be
revised, nor shall the Trustee be bound by or honor any such
revision, to decrease the benefits of a Participant or to impose
additional or more stringent conditions with respect to a
Participant's eligibility for benefits. The Trustee shall rely
on the most recent reports, documents, information, and
certifications furnished to it by the Corporation which comply
with the preceding sentence.
Section 4.4. Distributions to Participants. At such time
as a Participant, or the Beneficiary thereof, is entitled to the
receipt of benefits from the Supplemental $uper $aver Plus Plan,
he or she shall be entitled to receive from the Account
maintained with respect to such Participant the amount in cash or
property, as the case may be, to which he or she is entitled
under the terms of the Supplemental $uper $aver Plus Plan taking
into account any prior distributions made to the Participant
under the Supplemental $uper $aver Plus Plan. The Trustee also
shall make payments from the Fund to each Participant or
Beneficiary entitled thereto under the Supplemental $uper $aver
Plus Plan in accordance with Section 3.7 hereof upon written
direction from the Committee. All distributions made by the
Trust shall be in accordance with the most recent certification
filed with the Trustee pursuant to and in compliance with Section
4.3 hereof promptly upon receipt of written direction from the
Corporation or upon receipt of evidence submitted by the
Participant satisfactory to the Trustee that the Participant has
retired or otherwise terminated his employment with the
Corporation, voluntarily or otherwise. The Trustee shall not be
required to engage in its own independent investigation regarding
any such payment, but shall provide the Corporation with written
confirmation of the fact and amount of such payment after it is
made.
ARTICLE V
ACTUARY
Section 5.1. Determination of Corporation's Fund
Contributions by Actuary. The Actuary shall calculate from time
to time the amount of the contributions that it estimates should
be made to the Fund by the Corporation for the purpose to
accumulate funds to provide benefits under the Supplemental $uper
$aver Plus Plan; provided, however that, pursuant to Section 4.1
hereof, the Corporation may determine, in its sole and absolute
discretion, whether, and to what extent, the Corporation shall
make contributions to the Fund.
Section 5.2. Resignation/Removal of Actuary. The Actuary
may resign at any time by delivery of written notice of
resignation to the Corporation. Such resignation shall take
effect as of a future date specified in the notice of
resignation, which date shall not be earlier than the date ninety
(90) days after the day on which the notice is received. The
Actuary may be removed by the Corporation at any time by delivery
of written notice of such removal to the Actuary. Such removal
shall take effect as of a future date specified in the notice of
removal, which date shall not be earlier than the date sixty (60)
days after the day on which the notice is received, or such
earlier date as may be agreed to by the Actuary and the
Corporation. Notwithstanding the foregoing, in no event will any
such resignation or removal be effective until a successor
Actuary has been appointed upon such resignation or removal.
Upon the Corporation's receipt of notice of such resignation or
removal, the Corporation shall appoint a successor Actuary, by
written instrument, to serve commencing on the effective date of
the former Actuary's resignation or removal. If a successor is
not appointed by the Corporation within sixty (60) days after the
issuance of notice of the Actuary's resignation or removal, the
Committee shall appoint the successor Actuary.
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ARTICLE VI
INVESTMENTS AND POWERS OF THE TRUSTEE
Section 6.1. Fund Held in Trust. The Fund shall be held
in trust by the Trustee. The sole responsibilities, powers and
duties of the Trustee with respect to the Trust and the Fund
shall be as set forth in this Agreement. The Trustee shall be a
directed trustee only, with no discretionary authority or
responsibility, with respect to the Fund except to the extent
that it has discretion within investment guidelines provided to
it in writing by the Committee.
Section 6.2. Types of Investments.
(a) Except as otherwise provided in Section 6.4
hereof, the Trustee shall invest and reinvest the assets of
the Trust, without distinction between principal and income,
pursuant to investment guidelines delivered to it in a
manner which has the primary purpose of preservation of
principal and liquidity of the Fund and, secondarily, to the
extent consistent with the goal to preserve principal and
liquidity of the Fund, which maximizes the income of the
Fund. The Trustee is expressly authorized to invest the
Fund, or any portion thereof, in any property, real,
personal or mixed, wherever situated, and whether or not
productive of income or consisting of wasting assets,
including, without limitation, common and preferred stocks,
mutual funds, bonds, notes, debentures, securities
convertible into common stock, leaseholds, mortgages
(including, without limitation, any collective or part
interest in any bond and mortgage or note and mortgage),
interest bearing accounts and certificates of deposit, oil,
mineral or gas properties, royalties, interests or rights
(including equipment pertaining thereto), equipment trust
certificates, investment trust certificates, savings bank
deposits, and commercial paper, provided that the assets of
the Trust shall at no time be invested in the equity or debt
securities, whether secured or unsecured, of the
Corporation, its affiliates or its trades or businesses
except to the extent such security may be held in a mutual
fund. Pending such investment and reinvestment, the Trustee
may temporarily invest and reinvest the funds, at its
discretion, in any marketable short and medium term fixed
income securities, United States Treasury Bills, other short
and medium term government obligations, commercial paper,
other money market instruments and part interests in any one
or more of the foregoing or money market mutual funds, or
may maintain cash balances consistent with the liquidity
needs of the Trust as determined by the Trustee.
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(b) The Trustee shall, at the direction of the
Committee, purchase life insurance and/or annuity contracts
providing flexible funding or similar vehicles or for the
investment of assets in separate accounts invested in any
securities and other property including real estate,
regardless of whether or not the insurance carrier shall
have assumed any contractual or other liability as to the
benefits to be provided thereunder, the value thereof, or
the return therefrom. Such life insurance and/or annuity
contracts shall be considered investments of the Trust and
all rights, privileges, options and elections contained
therein shall vest in the Trustee but shall be exercised,
assigned or otherwise disposed of as directed by the
Committee. The insurance carrier under any such contract
shall have full responsibility for the management and
control of the assets held thereunder.
Section 6.3. Powers and Authority of Trustee. In addition
to the powers elsewhere conferred upon the Trustee under this
Agreement and subject to Sections 6.2 and 6.4 hereof, the Trustee
shall be authorized and empowered, in its discretion, to exercise
any and all of the following rights, powers and privileges with
respect to any cash, securities or other properties held by the
Trustee in trust hereunder, acting in accordance with written
instructions received from the Committee:
(a) To sell any such property at such time and upon
such terms and conditions as the Trustee deems appropriate.
Such sales may be public or private, for cash or credit, and
may be made without notice or advertisement of any kind.
(b) To exchange, mortgage, pledge or lease any such
property and to convey, transfer or dispose of any such
property on such terms and conditions as the Trustee deems
appropriate.
(c) To grant options for the sale, transfer, exchange
or disposal of any such property.
(d) To exercise all voting rights pertaining to any
securities; to consent to or request any action on the part
of the issuer of any such securities; and to give general or
special proxies or powers of attorney with or without power
of substitution.
(e) To consent to or participate in amalgamations,
reorganizations, recapitalizations, consolidations, mergers,
liquidations or similar transactions with respect to any
securities, and to accept and to hold any other securities
issued in connection therewith.
(f) To exercise any subscription rights or conversion
privileges with respect to any securities held in the Fund.
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(g) To collect and receive any and all money and other
property of whatsoever kind or nature due or owing or
belonging to the Fund and to give full discharge and
acquittance therefor; and to extend the time of payment of
any obligation at any time owing to the Fund, as long as
such extension is for a reasonable period and continues to
bear reasonable interest.
(h) To cause any securities or other property to be
registered in, or transferred to, the individual name of the
Trustee or in the name of one or more of its nominees, or
one or more nominees of any system for the centralized
handling of securities, or it may retain them unregistered
and in form permitting transferability by delivery, but the
books and records of the Trust shall at all times show that
all such investments are a part of the Fund.
(i) To organize under the laws of any state a
corporation for the purpose of acquiring and holding title
to any property which the Trustee is authorized to acquire
under this Agreement and to exercise with respect thereto
any or all of the powers set forth in this Agreement.
(j) To manage, operate, repair, improve, develop,
preserve, mortgage or lease for any period any real property
or any oil, mineral or gas properties, royalties, interest
or rights held by it directly or through any corporation,
either alone or by joining with others, using other Trust
assets for any of such purposes; to modify, extend, renew,
waive or otherwise adjust any or all of the provisions of
any such mortgage or lease; and to make provision for
amortization of the investment in or depreciation of the
value of such property.
(k) To settle, compromise, or submit to arbitration
any claims, debts or damages due or owing to or from the
Trust; to commence or defend suits or legal proceedings
whenever, in its judgment, any interest of the Trust
requires it; and to represent the Trust in all suits or
legal proceedings in any court of law or equity or before
any other body or tribunal, insofar as such suits or
proceedings relate to any property forming part of the Fund
or to the administration of the Fund.
(l) To borrow money from itself or others for the
purposes of the Trust.
(m) To purchase, hold and sell interests or units of
participation in any collective or common trust fund
established by the Trustee, including any such funds which
may be established in the future.
(n) Generally to do all acts, whether or not expressly
authorized which the Trustee deems necessary or appropriate
to perform its duties and discharge its responsibilities
under this Agreement.
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(o) To retain the services of outside legal counsel
and/or other professionals as may be necessary to assist it
in connection with the administration of the Trust and/or
management or conservation of the Fund's assets, including
defending the Trust from attack, claims or litigation
regarding its assets.
(p) To pay expenses of the Trust that are incurred in
connection with the administration of the Trust and/or the
management of the Fund's assets.
Section 6.4. Investment of Fund by Investment Manager.
(a) Appointment of Investment Manager. The Committee
may appoint one or more Investment Managers, which may be
the Trustee or an affiliate of the Trustee, to manage
(including the power to acquire and dispose of) all or any
of the assets of the Fund. In the event of such
appointment, the Committee shall establish the portion of
the assets of the Fund that shall be subject to the
management of any such Investment Manager and shall notify
the Trustee in writing of such appointment and the assets
subject to the Investment Manager's discretion. If there
shall be more than one Investment Manager, the portion of
the Fund to be invested by each such Investment Manager
shall be held in a separate account and the powers and
authority of each such Investment Manager shall be divided
as set forth in the instruments appointing such Investment
Managers. To the maximum extent permitted by law, the
Trustee shall be protected in assuming that the appointment
of an Investment Manager remains in effect until it is
otherwise notified by the Committee in writing. With
respect to the assets over which an Investment Manager has
investment responsibility, the Investment Manager shall
possess all of the investment powers and responsibilities
granted to the Committee hereunder, and the Trustee shall
invest and reinvest such assets pursuant to the direction of
the Investment Manager. Notwithstanding the foregoing, to
the extent so provided in the document by which the
Investment Manager accepts its appointment, the Committee
may:
(i) Direct the Investment Manager that certain
investments or types of investments shall be made or
liquidated;
(ii) Direct the Investment Manager that certain
investments or types of investments not be made; and
(iii) Require that the Investment Manager
obtain approval from the Committee prior to acquiring
or disposing of all or any assets under its control.
(b) Successor Investment Manager. The Committee may
terminate its appointment of an Investment Manager at any
time and shall in writing notify the Trustee of such
termination, and may thereafter appoint a successor
Investment Manager in the same manner as provided in this
Section 6.4. Such successor Investment Manager shall
thereafter, until its appointment shall be terminated, be
deemed to be an Investment Manager for all purposes of this
Agreement. In the event that a Committee does not exist,
the Trustee shall terminate any Investment Manager that is
not an affiliate of the Trustee and shall immediately
appoint its affiliate, Evergreen Investments, as Investment
Manager.
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(c) Affect of Appointment of Investment Manager on
Trustee. So long as an Investment Manager (other than the
Trustee or one of its affiliates) is serving as such, the
Trustee shall be under no duty or obligation to review the
assets comprising any portion of the Fund managed by the
Investment Manager, to make any recommendations with respect
to the investment or reinvestment thereof, or to determine
whether any direction received from any Investment Manager
is proper or within the terms of this Agreement or to
monitor the activities of any Investment Manager. The
Trustee shall have no liability or responsibility to the
Corporation, the Committee or any persons claiming any
interest in the Fund for acting without question on the
direction of, or for failing to act in the absence of any
direction from, the Committee or any Investment Manager
unless the Trustee participated knowingly in, or knowingly
undertook to conceal, an act or omission of the Committee or
of any Investment Manager constituting a breach of its
duties hereunder, knowing such act or omission was a breach
of such duties; provided, however, that the Trustee shall
not be deemed to have "participated" in a breach (i) by the
Committee or to have "knowledge" of any such breach as a
result of accepting any property contributed to the Trust in
the Corporation's discretion or retaining such property as
an investment for the Fund at the Committee's direction; and
(ii) by the Committee or any Investment Manager for the
purposes of this undertaking solely as a result of the
performance by the Trustee or its officers, employees or
agents of any custodial, reporting, recording, and
bookkeeping functions with respect to any assets of the Fund
managed by any Investment Manager, or with respect to which
the Trustee has received directions from the Committee, or
solely as a result of settling purchase and sale
transactions entered into or directed by any Investment
Manager or the Committee, or to have "knowledge" of any such
breach solely as a result of the information received by the
Trustee or its officers, employees or agents in the normal
course in performing such functions, or settling such
transactions. If the Trustee has actual knowledge of a
breach committed by an Investment Manager, it shall promptly
notify the Committee in writing thereof, and the Trustee,
except as required by applicable law, shall thereafter have
no responsibility to remedy such breach.
Section 6.5. Making Benefit Payments Upon Retirement or
Employment Termination. Upon receipt of (i) direction from the
Corporation consistent with certifications theretofore delivered
to the Trustee pursuant to Section 4.3 hereof or (ii) evidence
submitted by a Participant satisfactory to the Trustee that the
Participant has retired or otherwise terminated his employment
with the Corporation, the Trustee shall promptly make benefit
payments by its check, mailed to the payee at the address
furnished to the Trustee in accordance with the most recent
certifications theretofore furnished to the Trustee with respect
to the Participant. Taxes withheld from benefit payments shall
be paid by the Trustee to the appropriate taxing authorities.
All returns, records and forms required to be filed with the
Federal, state and local taxing authorities or delivered to each
Participant and Beneficiary shall be the sole responsibility of
the Trustee. All income taxes required to be paid by each
Participant (and any returns, records and forms required with
respect to such taxes) shall be the sole responsibility of such
Participant.
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Section 6.6. Deposit of Contributions by Trustee. The
Trustee shall accept for deposit in the Fund all contributions in
cash made by the Corporation under this Agreement and shall
promptly acknowledge receipt of same. The Trustee shall have no
responsibility to determine or to question the accuracy or
correctness of any amounts so contributed.
Section 6.7. Dealings with the Trustee. Persons dealing
with the Trustee shall be under no obligation to see to the
proper application of any money paid or property delivered to the
Trustee or to inquire into the Trustee's authority as to any
transaction.
Section 6.8. Use of Fund Assets to Pay Trust Expenses. If
the amount in the Expense Account is insufficient to pay the
expenses of the Trust, the Trustee may, in its discretion or at
the discretion of the Committee, use assets of the Fund (other
than those deposited in the Expense Account) to pay the expenses
of the Trust, including, without limitation, any (i) legal or
other professional expenses incurred in connection with the
management, protection or conservation of the assets of the Fund
and (ii) insurance premiums that may be incurred with respect to
any fiduciary liability insurance that may be obtained by the
Trust to cover potential claims for indemnification that may be
made by members of the Committee pursuant to Section 10.3 hereof.
ARTICLE VII
DUTIES OF THE TRUSTEE
Section 7.1. General Duties of the Trustee.
(a) It shall be the duty of the Trustee to
protect and conserve all property received by it hereunder
which, together with the income and gains therefrom and
additions thereto, shall constitute the Fund. The Trustee
shall manage, invest and reinvest the Fund, collect the
income thereof, and make payments therefrom, all as herein
provided.
(b) The Trustee shall discharge its duties with the
care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims, and,
in accordance with the documents and instruments governing
the Supplemental $uper $aver Plus Plan and the Trust.
Section 7.2. Valuation of Fund. The Trustee shall value
the Fund as of each Valuation Date at current fair market value
and shall report the results of such valuation to the Committee.
The Trustee shall value the assets of the Trust at market and on
such other basis or bases (including, without limitation, cost)
as the Committee shall reasonably request. The market value of
the assets shall be equal to the market value of the securities
and other assets in the Fund, plus cash, interest, dividends and
other sums received and accrued but not yet invested. The market
value of the securities and other assets in the Fund shall be
based on such market quotations and other information as are
available to the Trustee and as may in the Trustee's discretion
be appropriate.
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Section 7.3. Reports and Records. The Trustee shall:
(a) Keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions
in the Fund as it shall deem necessary and proper with
respect to its administration of the Trust, and permit
inspection of such accounts, records and assets of the Trust
by any duly authorized representative of the Corporation,
the members of the Committee or the Participants during
regular business hours.
(b) Within sixty (60) days (or such shorter period of
time as the Corporation shall reasonably request) following
the close of the accounting year, and at such other
intervals as are mutually agreed to by the Trustee, the
Corporation and the Committee, the Trustee shall file with
the Corporation, the Committee and, unless the Corporation
otherwise directs in writing, the Participants a written
account with respect to the transactions effected by the
Trustee during such accounting year or other period. The
Corporation and the Committee shall file written objections,
if any, with respect to the propriety of the Trustee's acts
and transactions shown in such account within a period of
ninety (90) days from the date of filing such annual or
other account. If within ninety (90) days after the receipt
of the account or any amended account the Corporation or the
Committee has not signed and returned a counterpart to the
Trustee, nor filed with the Trustee notice of any objection
to any act or transaction of the Trustee, the account or
amended account shall become an account settled as between
the Trustee and the Corporation and/or the Committee. If
any objection has been filed, and if the Corporation and/or
the Committee are satisfied that it should be withdrawn or
if the account is adjusted to their satisfaction, the
Corporation and/or the Committee shall in writing filed with
the Trustee signify their approval of the account, and the
account shall become an account settled as between the
Trustee and the Corporation and the Committee.
When an account becomes an account settled, such
account shall be finally settled, and the Trustee shall be
completely discharged and released, as if such account had
been settled and allowed by a judgment or decree of a court
of competent jurisdiction in an action or proceeding in
which the Trustee, the Corporation, the Committee and all
persons having or claiming to have any interest in the Fund
or under the Supplemental $uper $aver Plus Plan were
parties.
The Trustee, the Corporation or the Committee shall
have the right to apply at any time to a court of competent
jurisdiction for judicial settlement of any account of the
Trustee not previously settled as hereinabove provided. In
any such action or proceeding it shall be necessary to join
as parties only the Trustee, the Corporation and the
Committee (although the Trustee may also join other parties
as it deems appropriate), and any judgment or decree entered
therein shall be conclusive.
(c) Make such periodic reports to the Corporation and
the Committee as may be mutually agreed to by the Trustee,
the Corporation and the Committee, as applicable.
15
(d) Prepare and timely file such tax returns and such
other reports and documents, together with supporting data
and schedules, as may be required of the Trustee by law,
with any taxing authority or any other government authority,
whether local, state or Federal.
(e) Provide the Participants with copies of all such
reports, returns, filing and documents required by law, and
provide the Corporation each year with any necessary reports
or documents in sufficient time for the Corporation to
finalize the preparation and issuance of Form W-2's to the
Participants on or before January 31 of the respective year.
Section 7.4. No Duty to Advance Funds or to Administer the
Supplemental $uper $aver Plus Plan. The Trustee shall have no
obligation to advance its own funds for the purpose of fulfilling
its responsibilities under this Agreement, and its obligation to
incur expenses shall at all times be limited to amounts in the
Trust available to be applied toward such expenses. The Trustee
shall not be responsible in any respect for administering the
Supplemental $uper $aver Plus Plan.
Section 7.5. Resignation/Removal of Trustee. The Trustee
may resign at any time by delivery of written notice of
resignation to the Committee. Such resignation shall take effect
as of a future date specified in the notice of resignation, which
date shall not be earlier than the date ninety (90) days after
the day on which the notice is received, or such earlier date as
may be agreed to by the Trustee and the Committee. In addition,
the Trustee may be removed by the Committee at any time by
delivery of written notice of such removal to the Trustee. Such
removal shall take effect as of a future date specified in the
notice of removal, which date shall not be earlier than the date
sixty (60) days after the day on which the notice is received, or
such earlier date as may be agreed to by the Trustee and the
Committee.
Upon the Committee's receipt of notice of such resignation
or removal, the Committee shall appoint a successor Trustee by
written instrument, to serve commencing on the effective date of
the former Trustee's resignation or removal. If a successor is
not appointed by the Committee within sixty (60) days after the
issuance of notice of the Trustee's resignation or removal, the
Trustee may apply to a court of competent jurisdiction for the
appointment of his or its successor. All expenses of the Trustee
in connection with the proceeding shall be allowed as an
administration expense of the Trust. The Trustee shall continue
to serve until a successor accepts the Trust and receives
delivery of the Fund. The appointment of a successor Trustee
shall be effective when accepted in writing by the new Trustee.
Upon the successor Trustee's acceptance of appointment and after
the final account of the former Trustee has been settled, the
former Trustee shall transfer and deliver the Fund to such
successor. The former Trustee shall exercise any instrument
necessary or reasonably required by the Committee or the
successor Trustee to evidence the transfer. Moreover, the former
Trustee shall deliver to the successor Trustee the originals of
all reports, records, documents, and other written information in
its possession regarding the Supplemental $uper $aver Plus Plan,
the Fund, and the Participants and shall deliver copies thereof
to the Committee and to a person designated by a majority of the
persons who are Participants (or the Beneficiary of a deceased
Participant) on the date of such resignation or removal, and
thereupon shall be entitled to all unpaid compensation, fees and
reimbursements to which it is entitled under this Agreement and
shall be relieved of all responsibilities and duties under this
Agreement.
16
All of the provisions set forth herein with respect to the
Trustee shall relate to each successor with the same force and
effect as if such successor had been originally named as a
Trustee hereunder. Any successor Trustee shall have the same
powers, rights and duties as its predecessor and shall have the
same title to the Fund as its predecessor.
The successor Trustee need not examine the records and
accounts of any prior Trustee. The successor Trustee shall not
be responsible for, and the Corporation shall indemnify and
defend the successor Trustee from, any claim or liability
resulting from any action or inaction of any prior Trustee or
from any other past event, or any condition existing at the time
it becomes successor Trustee.
ARTICLE VIII
COMPENSATION, IMMUNITIES
AND INDEMNITY OF THE TRUSTEE
Section 8.1. Trustee Compensation and Expenses. The
Trustee shall be entitled to such compensation and fees for its
services under this Agreement as shall be agreed upon from time
to time with the Corporation. Likewise, the Corporation shall
reimburse the Trustee for any expenses incurred by it, including,
but not limited to, all proper charges and disbursements of the
Trustee, and reasonable fees for legal services rendered to the
Trustee (whether or not rendered in connection with a judicial or
administrative proceeding). Such compensation, fees and
reimbursement shall be paid to the Trustee pursuant to the terms
set forth at Section 8.2 hereof. The Trustee's entitlement to
compensation, fees or reimbursement hereunder shall not be
affected by the resignation or removal of the Trustee or the
termination of the Trust.
Section 8.2. Expense Account. The Corporation may from
time to time make contributions to the Fund to be held in an
Expense Account and to be utilized to pay the compensation, fees
and expenses of the Trustee and the Committee and other expenses
of the Trust. To the extent that there are monies in the Expense
Account, the Trustee shall utilize such Expense Account for
payment of the compensation, fees and expenses of the Trustee and
the Committee, for payment of the indemnities referred to in
Sections 8.4 and 10.3 hereof, and for other expenses of the
Trust, and, in the absence of sufficient monies, shall seek
reimbursement from the Corporation. In the event that the
Corporation shall fail or refuse to make such reimbursement
within sixty (60) days of demand, the Trustee may satisfy such
obligations out of the other assets of the Fund in such manner as
the Trustee deems to be reasonable in the circumstances, taking
into account the amount of liquid assets, the anticipated needs
to make distributions to Participants (or the Beneficiaries
thereof), and such other factors as the Trustee deems relevant.
If the Trustee satisfies any obligations of the Corporation to
pay fees and expenses from other Fund assets, the Corporation
shall immediately upon demand by the Trustee deposit into the
Trust an amount of cash equal to the amount paid from such Fund
assets if, at that time, the Trustee could not replace such
assets with a cash amount equal to the liquidation value of such
assets. If such funds are not deposited within sixty (60) days
of such demand, the Trustee may, in its sole and absolute
discretion, commence legal action against the Corporation for
recovery of the amount paid out of the Fund. Notwithstanding
anything herein to the contrary, no amount held in the Expense
Account shall be used for purposes other than paying the
compensation, fees and expenses of the Trustee and the Committee
and other expenses of the Trust, and shall not be distributed to
or for the benefit of the Participants (or the Beneficiaries
thereof).
17
Section 8.3. Immunities. The Trustee shall have the
following privileges and immunities:
(a) The Corporation and the Committee shall furnish
the Trustee with instruments evidencing individuals
designated by the Corporation or the Committee, as the case
may be, who are empowered to give directions, statements, or
certificates to the Trustee. A written direction, statement
or certificate to the Trustee signed by any such individual
shall be deemed to be the direction, statement or
certificate of the Corporation or the Committee, as the case
may be, and the Trustee may rely upon such directions,
statements, or certificates to the extent not prohibited by
law. The Corporation and the Committee shall furnish the
Trustee from time to time with instruments evidencing the
termination of such designated individuals or the
appointment of new such designated individuals and the
Trustee shall be entitled to rely upon such instruments as
evidence of the identity and authority of such designated
individuals and shall not be charged with notice of any
change with respect thereto until the Corporation or the
Committee, as the case may be, has furnished the Trustee
with instruments relative to such change.
(b) The Trustee is authorized to seek the advice of,
and consult with, legal counsel with respect to any matter
involving the Trust. Such counsel may, but need not, be
legal counsel to the Corporation. The Trustee shall be
entitled to rely on the advice of legal counsel with respect
to any matter involving the Trust. The Trustee may also
from time to time employ agents and expert assistants and
delegate to them such ministerial duties it may see fit. In
the event that the Trustee does delegate such ministerial
duties, it shall periodically review the performance of the
person to whom these duties have been delegated. The
Trustee shall be reimbursed by the Corporation for all costs
arising from the employ of legal counsel, agents and expert
assistants pursuant to the terms set forth at Section 8.2
hereof.
Section 8.4. Indemnity of the Trustee.
(a) The Corporation hereby indemnifies and holds the
Trustee harmless from and against any and all losses,
damages, costs, expenses or liabilities, including
reasonable fees for legal services and other costs of
litigation, to which the Trustee may become subject pursuant
to, arising out of, occasioned by, incurred in connection
with, or in any way associated with this Agreement,
including any reasonable discretionary action which the
Trustee may take under the Trust, except for any act or
omission constituting gross negligence or willful misconduct
of the Trustee. If one or more liabilities shall arise, or
if the Corporation fails to indemnify the Trustee as
provided herein, or both, then the Trustee may engage
counsel of the Trustee's choice, but at the Corporation's
expense, either to conduct the defense against such
liabilities, or to conduct such actions as may be necessary
to obtain the indemnity provided for herein, or to take both
such actions. The Trustee shall notify the Corporation
within fifteen (15) days after the Trustee has engaged
counsel of the name and address of such counsel.
18
(b) If the Trustee shall be entitled to
indemnification by the Corporation pursuant to this Section
8.4, and the Corporation shall not provide such
indemnification upon demand, the Trustee may apply the
assets of the Fund in full satisfaction of the obligations
for indemnity by the Corporation, and any legal proceeding
by the Trustee against the Corporation for such
indemnification shall be in behalf of the Trust.
Section 8.5. Determination of Interests in the Fund,
Enforcement of Trust and Legal Proceedings. The interest of the
Participants (and the Beneficiaries thereof) in the Fund shall be
determined in accordance with the terms of the Supplemental $uper
$aver Plus Plan under the Plan. The Trustee shall have no duty
to question any direction given by the Corporation or the
Committee to the Trustee, including any direction advising the
Trustee as to such interests under the Supplemental $uper $aver
Plus Plan. The Corporation and the Committee shall have
authority to enforce this Agreement. To protect the Fund from
the expenses which might otherwise be incurred, no person other
than the Corporation or the Committee may institute or maintain
any action or proceeding against the Trustee or the Fund, or join
in any such action or proceeding, in the absence of written
authorization by the Corporation or the Committee. Except as
otherwise provided in this Section 8.5, in any action or
proceeding affecting the Fund, the only necessary parties shall
be the Corporation, the Committee and the Trustee, and no other
person shall be entitled to any notice or process.
ARTICLE IX
AMENDMENT AND TERMINATION OF THE TRUST
Section 9.1. Amendment of Agreement. By a duly executed,
written instrument delivered to the Trustee and acknowledged in
the same form as this Agreement, the Corporation shall have the
right at any time and from time to time to amend this Agreement
in whole or in part, except that: (i) the duties and
responsibilities of the Trustee or the Committee shall not be
increased, and the protections afforded to the Trustee or the
Committee shall not be impaired without the written consent of
the Trustee or the Committee, as the case may be; (ii) the
protection afforded with respect to obligations payable to or on
behalf of the Participants hereunder may not be impaired without
the unanimous written consent of the Participants; and (iii) the
Corporation shall not have the power to revoke this Trust or to
revest title in itself to the assets comprising the Fund. Any
such amendment shall be effective upon (a) delivery of such
amendment to the Trustee and the Committee, together with a
certified copy of the resolution of the Board of Directors of the
Corporation or of its Compensation Committee, as the case may be;
and (b) endorsement by each the Trustee and the Committee on such
instrument upon receipt thereof, together with any required
consent or consents thereto. No such amendment shall adversely
affect any benefits accrued under the Supplemental $uper $aver
Plus Plan with respect to the Participants. All instruments
amending this Agreement shall be noted upon or kept attached to
the executed original of this Agreement.
19
Section 9.2. Termination of Agreement. This Agreement may
not be terminated until the liability of the Corporation for the
payment of all benefits to all Participants, and the
Beneficiaries thereof, has been satisfied in full or until such
time as no funds remain on deposit in the Fund pursuant to this
Agreement; provided, however, that with the written consent of a
Participant, or the Beneficiary thereof, the Committee may
terminate this Agreement at any time with respect to such
consenting Participant or Beneficiary. Notwithstanding anything
herein to the contrary, this Trust shall terminate no later than
twenty-one (21) years after the death of the last survivor of all
of the Participants included in the original list of Participants
attached hereto as Schedule A, and those persons now living who
have been designated as Beneficiaries of such Participants in
accordance with the terms of the Supplemental $uper $aver Plus
Plan.
ARTICLE X
THE COMMITTEE
Section 10.1. Membership and Actions of the Committee.
(a) The Committee shall at all times consist of a
minimum of three (3) individuals, all of whom shall be
Participants of the Plan. The initial Committee members are
identified in Schedule B attached hereto. Any member of the
Committee may resign upon thirty (30) days prior written
notice to the Corporation. Moreover, any member of the
Committee may be removed at any time by the Corporation.
(b) In the event of a vacancy on the Committee, the
other member(s) of the Committee shall appoint a successor.
In the event that there is at any time no member of the
Committee then in office, successor members shall be
appointed by the Corporation.
(c) Any action by the Committee shall require the
written approval of at least a majority of the members of
the Committee. A Committee member shall not be liable
hereunder for any act taken, or omitted to be taken, in good
faith, except for any act or omission constituting gross
negligence or willful misconduct by such Committee member.
(d) All of the provisions set forth herein with
respect to a member of the Committee shall relate to each
successor with the same force and effect as if such
successor had been originally named as a member of the
Committee.
(e) The Committee is authorized to seek the advice of,
and consult with, legal counsel with respect to any matter
involving the Trust. Such counsel may, but need not, be
legal counsel to the Corporation. The Committee shall be
entitled to rely on the advice of legal counsel with respect
to any matter involving the Trust. The Committee may also
from time to time employ agents and expert assistants and
delegate to them such ministerial duties as it may see fit.
In the event that the Committee does delegate such
ministerial duties, it shall periodically review the
performance of the person to whom these duties have been
delegated. The Committee members shall be reimbursed by the
Corporation for all costs arising from the employ of legal
counsel, agents and expert assistants pursuant to the terms
set forth at Section 8.2 hereof.
20
Section 10.2. Committee Compensation and Expenses. The
Committee members shall be entitled to such compensation and fees
for their services under this Agreement as shall be agreed upon
from time to time with the Corporation. Likewise, the
Corporation shall reimburse the Committee members for any
expenses incurred by them, including, but not limited to, all
proper charges and disbursements of the Committee members, and
reasonable fees for legal services rendered to the Committee
(whether or not rendered in connection with a judicial or
administrative proceeding). Such compensation, fees and
reimbursement shall be paid to the Committee members pursuant to
the terms set forth at Section 8.2 hereof. The Committee
members' entitlement to compensation, fees or reimbursement
hereunder shall not be affected by the resignation or removal of
any member or members of the Committee or the termination of the
Trust.
Section 10.3. Indemnity of Committee.
(a) The Corporation hereby indemnifies and holds each
member of the Committee harmless from and against any and
all liabilities, including reasonable fees for legal
services and other costs of litigation, to which each such
member of the Committee may become subject pursuant to,
arising out of, occasioned by, incurred in connection with,
or in any way associated with this Trust or Agreement,
except for any act or omission constituting gross negligence
or willful misconduct of such member of the Committee. If
one or more liabilities shall arise, or if the Corporation
fails to indemnify such member of the Committee as provided
herein, or both, then the Committee member may engage
counsel of the Committee member's choice, but at the
Corporation's expense, either to conduct the defense against
such liabilities, or to conduct such actions as may be
necessary to obtain the indemnity provided for herein, or to
take both such actions. The Committee member shall notify
the Corporation within fifteen (15) days after the Committee
member has so engaged counsel of the name and address of
such counsel.
(b) If a Committee member shall be entitled to
indemnification pursuant to this Section 10.3, and the
Corporation shall not provide such indemnification upon
demand, the Trustee shall satisfy any indemnity to a
Committee member pursuant to this Section 10.3 out of the
assets of the Fund in full satisfaction of the obligations
for indemnity by the Corporation, and any legal proceeding
by the Committee member against the Corporation for such
indemnification shall be in behalf of the Trust.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Governing Law. This Trust is created and
accepted in the State of Delaware. All questions pertaining to
the validity or construction of this Agreement and the acts and
transactions of the parties hereto and their respective
successors shall be determined in accordance with the laws of the
State of Texas, except as to matters governed by Federal law.
21
Section 11.2. No Effect on Employment. Nothing contained
in this Agreement shall create, or be construed or interpreted to
create, any new or additional obligations on the part of the
Corporation or its affiliates to retain any person in its employ
or interfere in any way with the right of the Corporation or its
affiliates to discharge any employee.
Section 11.3. Successors. This Agreement shall be binding
upon, and the powers herein granted to the Corporation and the
Trustee, respectively, shall be exercisable by, the respective
successors and assigns of the Corporation and the Trustee.
Section 11.4. Severability. Should any provision of this
Agreement be determined by a court of competent jurisdiction to
be unlawful or unenforceable, such determination shall not
adversely affect the remaining provisions of this Agreement,
unless it shall make impossible the maintenance or operation of
the Trust for its intended purposes. To the extent any provision
of this Agreement is determined to be unlawful or unenforceable,
this Agreement shall be construed to be carried out to the
fullest extent possible in a lawful and enforceable manner.
Section 11.5. Incorporation of Plan as Part of Agreement.
The Plan is expressly incorporated herein and made a part hereof
with the same force and effect as if fully set forth. A copy of
the Plan as in effect on the date hereof is attached hereto as
Exhibit A. The Corporation shall deliver to the Trustee a copy
of all amendments to the Plan hereafter adopted.
Section 11.6. Execution in Counterparts. This Agreement
may be executed in any number of counterparts, each of which
shall be considered an original and said counterparts shall
constitute but one and the same instrument.
Section 11.7. Effect of Divisions and Captions. The
division of this Agreement into articles, paragraphs, sections
and subsections and the use of captions are solely for
convenience and shall have no legal effect in construing the
provisions of this Agreement.
Section 11.8. Gender and Number. Whenever the masculine,
feminine, or neuter gender is used inappropriately in this
Agreement, this Agreement shall be read as if the appropriate
gender was used, and, unless the context otherwise requires, the
singular shall include the plural, and vice versa.
22
IN WITNESS WHEREOF, the Corporation, the Trustee and the
Committee have entered in to this Agreement as of the Effective
Date.
CORPORATION:
AMERICAN AIRLINES, INC.,
a Delaware corporation
Attest: By: /s/ Charles D. MarLett
Charles D. MarLett, Corporate Secretary
TRUSTEE:
WACHOVIA BANK,
NATIONAL ASSOCIATION
Attest: By:
Name:
Title:
COMMITTEE:
Attest: By: /s/ Gerard J. Arpey
Gerard J. Arpey
Attest: By: /s/ James A. Beer
James A. Beer
Attest: By: /s/ Jeffrey J. Brundage
Jeffrey J. Brundage
Attest: By: /s/ Gary F. Kennedy
Gary F. Kennedy
SUBSCRIBED AND SWORN TO before me, Sandra Symanovich, by
CHARLES D. MARLETT, this 15th day of September, 2005.
/s/ Sandra Symanovich
Notary Public
SUBSCRIBED AND SWORN TO before me by , this day of
September, 2005.
Notary Public
SUBSCRIBED AND SWORN TO before me, Sandra Symanovich, by
GERARD J. ARPEY , this 15th day of September, 2005.
/s/ Sandra Symanovich
Notary Public
SUBSCRIBED AND SWORN TO before me, Sandra Symanovich, by
JAMES A. BEER, this 15th day of September, 2005.
/s/ Sandra Symanovich
Notary Public
SUBSCRIBED AND SWORN TO before me, Sandra Symanovich, by
JEFFREY J. BRUNDAGE , this 15th day of September, 2005.
/s/ Sandra Symanovich
Notary Public
SUBSCRIBED AND SWORN TO before me, Sandra Symanovich, by
GARY F. KENNEDY , this 15th day of September, 2005.
/s/ Sandra Symanovich
Notary Public
SCHEDULE A
The persons identified herein constitute the Participants of
the Supplemental $uper $aver Plus Plan as of the Effective Date
of the Trust.
Robert C. Cordes
Monte E. Ford
Susan B. Garcia
William T. Greene
Andrews O. Watson
SCHEDULE B
The individuals designated herein constitute the initial
members of the Committee responsible for administering the Trust.
(1) Gerard J. Arpey
(2) James A. Beer
(3) Jeffrey J. Brundage
(4) Gary F. Kennedy
EXHIBIT A
THE
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (SERP) FOR OFFICERS
OF
AMERICAN AIRLINES, INC.
AND THE
SERP SUMMARY PLAN DESCRIPTION
ORIGINALLY EFFECTIVE JANUARY 1, 1985
Amended and Restated Effective October 15, 2002
THE
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM (SERP) FOR OFFICERS
OF
AMERICAN AIRLINES, INC.
AND THE
SERP SUMMARY PLAN DESCRIPTION
ORIGINALLY EFFECTIVE JANUARY 1, 1985
TABLE OF CONTENTS
Page
ARTICLE I NAME AND PURPOSE OF THE PLAN 1
ARTICLE II DEFINITIONS 1
ARTICLE III ELIGIBILITY AND PARTICIPATION 5
ARTICLE IV BENEFITS IN CONNECTION WITH THE BASE DEFINED
BENEFIT PLAN 6
ARTICLE V CONTRIBUTIONS AND EARNINGS CREDITS IN CONNECTION
WITH THE $UPER $AVER PLUS PLAN 7
ARTICLE VI PAYMENT OF BENEFITS 7
ARTICLE VII AMENDMENT AND TERMINATION 10
ARTICLE VIII GENERAL CONDITIONS 10
ARTICLE IX FUNDING 12
ARTICLE X TRUST 12
ARTICLE XI ERISA RIGHTS 13
ARTICLE XII CLAIMS PROCEDURES 14
ARTICLE XIII FINALITY OF DECISIONS OR ACTS 16
ARTICLE XIV GENERAL INFORMATION ABOUT YOUR PLAN 16
ARTICLE I
NAME AND PURPOSE OF THE PLAN
Section 1.1 Name and Purpose of the Plan
This Supplemental Executive Retirement Program for Officers
of American Airlines, Inc. (the "Plan") provides supplemental
retirement benefits to selected officers of American Airlines,
Inc. A separate Supplemental Executive Retirement Program (For
Non-Officers) provides certain supplemental retirement benefits
to other key employees as designated by the Board of Directors or
the Chairman of AMR.
Prior to January 1, 2001, the supplemental benefits provided
under this Plan consisted only of supplemental retirement
benefits in excess of the maximum pension benefits payable under
a Participant's Base Defined Benefit Plan and a supplemental
retirement benefit based on a Participant's Incentive
Compensation and Performance Returns. These continuing benefits
are described in Article IV of the Plan.
Effective January 1, 2001, certain Participants, who
participate in the $uper $aver Plus Plan, either because they
elected to forego participation in a Base Defined Benefit Plan,
or because they were not eligible to elect to participate in a
Base Defined Benefit Plan, shall be eligible to receive benefits
under Article V of the Plan, as set forth in this amended and
restated Plan.
ARTICLE II
DEFINITIONS
Section 2.1 Account. A bookkeeping entry maintained for
each Active Funding Participant to reflect the amount of Funded
Accrued Benefit contributed to the trust on account of such
Active Funding Participant.
Section 2.2 Act. The Employee Retirement Income Security
Act of 1974, as amended.
Section 2.3 Active Funding Participant
A Participant who currently performs active duties of
employment while a Participant pursuant to Section 3.1 and who is
vested in a benefit under Article IV of this Plan, as of October
1, 2002.
Section 2.4 AMR. AMR Corporation
Section 2.5 Annual Defined Benefit Retirement Benefit.
The amount determined by subtracting the Base Defined Benefit
Plan Benefit from the greatest of (i) the Base Plan Social
Security Offset Benefit, (ii) the Final Average Earnings Benefit,
or (iii) the Basic Benefit. If the Base Defined Benefit Plan of
a Participant is the American Airlines, Inc. Pilot Retirement
Benefit Program, the Annual Defined Benefit Retirement Benefit
shall be the amount determined by subtracting the Base Defined
Benefit Plan Benefit from the amount that would have been payable
under the Base Defined Benefit Plan in the absence of the Base
Defined Benefit Plan limits on compensation and benefits under
the Code, plus the Supplemental Incentive Compensation Retirement
Benefit and the Supplemental Performance Return Retirement
Benefit (for such purposes variable benefits shall be
disregarded).
1
Section 2.6 Average Incentive Compensation. An amount
calculated as follows:
(a) The sum of a Participant's four highest annual
Incentive Compensation awards (or the sum of all such awards
if the Participant has fewer than four such awards) paid
to a Participant during the time period beginning on or after
January 1, 1985, and ending on the first to occur of:
(1) the Participant's actual retirement under the
Base Defined Benefit Plan, or under $uper $aver if the
Participant is not participating in a Base Defined
Benefit Plan,
(2) the date of the Participant's death, or
(3) the date of the Participant's retirement.
If a Participant is credited with less than a full year of
Credited Service as a Participant in any year in which
Incentive Compensation is paid, that portion of the
Participant's Incentive Compensation that is taken into
account will be prorated based on the Credited Service
earned by the Participant for such year.
(b) Divide the sum determined in (a), above, by four
(or by the number of such awards if the Participant has
fewer than four such awards).
Section 2.7 Average Performance Return. An amount
calculated as follows:
(c) The sum of a Participant's four highest annual
Performance Return awards (or the sum of all such awards if
the Participant has fewer than four such awards) paid to the
Participant during the Participant's career and ending on
the first to occur of:
(1) the Participant's actual retirement under the
Base Defined Benefit Plan, or under $uper $aver if the
Participant is not participating in a Base Defined
Benefit Plan,
(2) the date of the Participant's death, or
(3) the date of the Participant's retirement.
(d) Divide the sum determined in (a), above, by four
(or by the number of such awards if the Participant has fewer
than four such awards).
Section 2.8 Base Defined Benefit Plan. The defined benefit
retirement benefit plan (or plans) of the Company which qualifies
under section 401 of the Code and under which certain Participants
covered under this Plan are eligible to receive benefits.
Section 2.9 Base Defined Benefit Plan Benefit. The annual
benefit a Participant or Beneficiary is entitled to receive from
the Base Defined Benefit Plan upon retirement, disability, death
or termination of employment, subject to the Base Defined Benefit
Plan provisions which limit such benefit to the maximum amount
permitted by the Code.
2
Section 2.10 Base Plan Social Security Offset Benefit
The annual amount of a Participant's or Beneficiary's benefit
under any "Social Security Offset Benefit," as defined in the
Base Defined Benefit Plan, computed without regard to the Base
Defined Benefit Plan limits on compensation and benefits under
the Code, plus the Supplemental Incentive Compensation and
Performance Return Retirement Benefit.
Section 2.11 Basic Benefit
The annual amount of a Participant's or Beneficiary's benefit
under any "Basic Benefit," as defined in the Base Defined Benefit
Plan, computed without regard to the Base Defined Benefit Plan
limits on compensation and benefits under the Code, plus the
Supplemental Incentive Compensation and Performance Return
Retirement Benefit.
Section 2.12 Beneficiary
A person designated by a Participant who, as permitted under
the terms of the Plan, is or may be entitled to a benefit under
the Plan in the event of the death of the Participant. If no
Beneficiary is designated, or if the designated Beneficiary is
not then living, benefits will be paid pursuant to Section 6.5.
Section 2.13 Board of Directors
The Board of Directors of AMR.
Section 2.14 Code
The Internal Revenue Code of 1986, as amended.
Section 2.15 Committee
The administrative committee appointed by the Board of
Directors to manage and administer this Plan.
Section 2.16 Company
Any subsidiary of American Airlines, Inc. or any subsidiary of
AMR, which is designated for inclusion as a participating
employer in the Plan, as determined by the Board of Directors.
Section 2.17 Credited Service
The term "Credited Service" under this Plan has the same
meaning for purposes of this Plan as it has in the applicable
Base Defined Benefit Plan.
Section 2.18 Executive Deferral Plan. The AMR Corporation
1987 Executive Deferral Plan, as amended.
Section 2.19 Final Average Earnings Benefit
The annual amount of a Participant's or Beneficiary's benefit
under any "Final Average Earnings Benefit," as defined in the
Base Defined Benefit Plan, computed without regard to the Base
Defined Benefit Plan limits on compensation and benefits under
the Code, plus the Supplemental Incentive Compensation and
Performance Return Retirement Benefit.
Section 2.20 Funded Accrued Benefit
The portion of the present value of the benefit under Article
IV represented by a credit to a bookkeeping account of an Active
Funding Participant as a Funded Accrued Benefit in the Trust, at
the discretion of the Committee.
Section 2.21 Incentive Compensation
Compensation paid to a Participant on or after January 1,
1985, in accordance with one of the incentive compensation plans
adopted by the Board of Directors or the Board of Directors of
American Airlines, Inc., whether paid currently or deferred. For
purposes of this definition, long-term, multi-year incentive
compensation plans shall not be considered to be incentive
compensation plans.
3
Section 2.22 Non-Active Funding Participant
A Participant who is not yet vested in a benefit under this
Plan, or who is on a Management Leave of Absence under the AMR
Mangement Leave of Absence Policy or who is retired or otherwise
separated from employment.
Section 2.23 Non-Funded Accrued Benefit
The portion of the benefit under Article IV or under Article V
not represented by a credit to the Account of a Participant as a
Funded Accrued Benefit.
Section 2.24 Non-Officer SERP
The Supplemental Executive Retirement Program for Non-Officers
of American Airlines, Inc.
Section 2.25 Participant
An individual who is participating in the Plan on October 15,
2002 shall be a Participant. An elected officer of American
Airlines, Inc., who is a participant in a Base Defined Benefit
Plan or the $uper $aver Plus Plan shall be a Participant. An
individual who is an appointed officer of American Airlines, Inc.
or a designated officer of another Company may be a Participant
only if (i) he or she is a participant in a Base Defined Benefit
Plan or the $uper $aver Plus Plan and (ii) is designated as a
Participant by the Board of Directors or under a writing signed
by the Chairman of AMR.
Section 2.26 Performance Return
Compensation paid to a Participant pursuant to a specified
portion of career equity shares granted to the Participant, as
determined by the Board of Directors.
Section 2.27 Plan
The Supplemental Executive Retirement Program of American
Airlines, Inc., as amended. The Plan may also be referred to
herein as the "SERP". There is a separate, but related,
Supplemental Executive Retirement Program for Non-Officers of
American Airlines, Inc., for key employees who are not officers.
This Plan features a supplement to defined benefit plan benefits
as described in Article IV and a supplement to $uper $aver Plus
Plan benefits, as described in Article V.
Section 2.28 $uper $aver. $uper $aver, a 401(k) Capital
Accumulation Plan for Employees of Participating AMR Corporation
Subsidiaries, which qualifies under sections 401(a) and 401(k) of
the Code, and under which certain Participants are eligible to
receive benefits.
Section 2.29 $uper $aver Plus Plan
$uper $aver Plus, a Supplement to $uper $aver, which describes
a program of employer contribution-provided benefits in addition
to those available under the regular provisions of $uper $aver.
Section 2.30 $uper $aver Plus Plan Accout
A bookkeeping entry maintained for each Participant to record
the deemed contributions and earnings credited under the name
of the Particpant pursuant to Article V.
Section 2.31 $uper Saver Plus Plan Excess Contribution
A contribution credited to the Participant's $uper $aver Plus
Plan Account that is equal to the total employer contributions
(exclusive of cash or deferred contributions under sections 401(k)
and 402(g) of the Code) that would have been credited under the
Participant's accounts in the $uper $aver Plus Plan, based upon
the Participant's elections under the $uper $aver Plus Plan, but
for the provisions of sections 401(a)(17), 415 and 402(g) of the
Code (or any Code sections replacing such sections with
comparable limitations). Additionally, the credited $uper $aver
Plus Plan Excess Contribution shall include the amount that
would have been credited to the Participant's account under the
$uper $aver Plus Plan based on the Participant's contribution
rate election under $uper $aver if Incentive Compensation had
constituted compensation subject to deferral under $uper $aver
and the $uper $aver Plus Plan.
4
Section 2.32 Supplemental Incentive Compensation Retirement
Benefit
The amount determined by multiplying the Average Incentive
Compensation by two percent for each year of Credited Service.
Section 2.33 Supplemental Incentive Compensation and
Performance Return Retirement Benefit
The difference between the benefits calculated under any
"Social Security Offset Benefit" formula as defined in the Base
Defined Benefit Plan, including and excluding Average Incentive
Compensation and Average Performance Return, in each case
computed without regard to the Base Defined Benefit Plan limits
on compensation and benefits under the Code.
Section 2.34 Supplemental Performance Return Retirement
Benefit
The amount determined by multiplying the Average Performance
Return by two percent for each year of Credited Service.
Section 2.35 Trust
The Trust Agreement Under Supplemental Retirement Program for
Officers of American Airlines, Inc. entered into between American
Airlines, Inc. and Wachovia Bank National Association.
Section 2.36 Trustee
Wachovia Bank National Association.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Section 3.1 An individual who is participating in the Plan
on October 15, 2002. An elected officer of American Airlines, Inc.
who is participating in a Base Defined Benefit Plan or the
$uper $aver Plus Plan is a Participant in the Plan. An appointed
officer of American Airlines, Inc. or an officer of another
Company may be a Participant only if he or she is a participant
in a Base Defined Benefit Plan or the $uper $aver Plus Plan and
is designated as a Participant by the Board of Directors or under
a writing signed by the Chairman of AMR. As provided in Section
8.5 with respect to Active Funding Participants, this Plan is an
"employee pension benefit plan" (as defined in section 3(2) of
the Act) that is an "individual account plan" and "defined
contribution plan" (as defined in section 3(34) of the Act), and
as to all other benefits, the Plan is a plan described in
sections 201(2), 301(a)(3) and 401(a)(1) of the Act. The Plan is
exempt from Part 3 of Subtitle B of Title I of the Act pursuant
to section 301(a)(8) of the Act.
5
Section 3.2 Any Participant in this Plan who was a
Participant prior to January 1, 2001, and who ceased to continue
to accrue service for benefits under the Base Defined Benefit
Plan as of such date pursuant to an election to participate in
the $uper $aver Plus Plan shall remain eligible for the benefits
accrued under Article IV of the Plan for service prior to such
date. No further accruals of service for benefits under Article
IV of the Plan shall occur, however, after the effective date of
the Participant's election to forego participation in the Base
Defined Benefit Plan. Such Participants who forego participation
in the Base Defined Benefit Plan shall be eligible to receive
benefits determined under Article IV with respect to service for
periods prior to January 1, 2001, and/or under Article V of the
Plan, for periods commencing on and after January 1, 2001.
Section 3.3 Participants who continue to accrue service for
benefits in the Base Defined Benefit Plan after January 1, 2001,
or who commence participation thereafter and who do not accrue
benefits under Article V of the Plan, shall continue to accrue
benefits as provided herein only under Article IV of the Plan.
Section 3.4 A Participant who is elected as an officer and
later becomes a non-officer will have any SERP benefit pursuant
to Article V as an officer frozen (subject to adjustment pursuant
to Section 5.2 in the case of benefits under Article V) as of the
last date the Participant serves as an officer, but such Account
shall remain payable under this Plan. In the event that the
Participant is not thereafter designated for participation in the
Non-Officer SERP, any benefit of the Participant subject to
Article IV shall be frozen as of the last date the Participant
serves as an officer, but shall remain payable under this Plan.
In the event that a Participant who is elected as an officer and
later becomes a non-officer is designated for participation in
the Non-Officer SERP, any accrued benefit under Article IV that
is based on Incentive Compensation or Performance Return shall be
frozen as of the last date of the Participant serves as an
officer, but shall remain payable under this Plan, and the
remaining accrued benefit under Article IV shall be transferred
to the Non-Officer SERP and shall be a part of the accrued
benefit under Article IV thereunder, without causing duplication
of benefits.
ARTICLE IV
BENEFITS IN CONNECTION WITH THE BASE DEFINED BENEFIT PLAN
Section 4.1 The Plan will pay an Annual Defined Benefit
Retirement Benefit to a Participant who earned benefits under
this Plan while participating in the Base Defined Benefit Plan.
The portion of any such Annual Defined Benefit Retirement
Benefit that is satisfied on an after tax basis by a credit to
the Account for an Active Funding Participant shall be paid from,
and credited against, the Participant's Account and paid through
the Trust.
Section 4.2 If no benefit is payable under the Base Defined
Benefit Plan, then no benefit will be payable under Article IV of
the Plan.
6
ARTICLE V
CONTRIBUTIONS AND EARNINGS CREDITS
IN CONNECTION WITH THE $UPER $AVER PLUS PLAN
Section 5.1 If a Participant in this Plan is participating
in the $uper $aver Plus Plan, the Committee shall credit annually
to the Participant's $uper $aver Plus Plan Account a $uper $aver
Plus Plan Excess Contribution, at the discretion of the
Committee.
Section 5.2 In addition to the $uper $aver Plus Plan Excess
Contribution provided for under this Article V pursuant to
Section 5.1, the Committee shall periodically, at such times as
shall be determined in its sole discretion, credit or debit, as
the case may be, to a Participant's $uper $aver Plus Plan
Account, the earnings or losses that would have accrued to such
$uper $aver Plus Plan Account if such $uper $aver Plus Plan
Account were invested in the investment funds elected by the
Participant for the investment of amounts credited to his or her
accounts in the Executive Deferral Plan during the relevant
computation period. If the Participant for whom a $uper $aver
Plus Plan Excess Contribution under this Article V is credited is
not a participant in the Executive Deferral Plan, the Participant
will be required to designate investment funds (as available
under the Executive Deferral Plan) for the purpose of determining
such credits and debits to the $uper $aver Plus Plan Account. If
no such election is made, until the election is made the $uper
$aver Plus Plan Account will be credited or debited as determined
by the Committee, in its sole discretion. The Committee will
promulgate procedures for changing such elections from time to
time as it shall determine, in its sole and absolute discretion.
Section 5.3 If no benefit is payable under the $uper $aver
Plus Plan, then no benefit will be payable under Article V of the
Plan. In making such determination, benefits attributable to
contributions under $uper $aver, other than under the $uper $aver
Plus Plan, shall be disregarded. The amount of any Funded
Accrued Benefit contribution under this Article V shall be paid
to the Trust, net of taxes, and credited to the Participant's
Account. Amounts paid to a Participant on account of this
Article V from an Account shall be charged against the
Participant's $uper $aver Plus Plan Account.
ARTICLE VI
PAYMENT OF BENEFITS
Section 6.1 Except as otherwise provided in this Article VI
and in Sections 7.3 and 8.2, benefits under Article IV shall be
payable at the same time and in the same manner hereunder as
under the Base Defined Benefit Plan. Any benefit payable under
Article IV on account of the death of the Participant shall be
payable pursuant to the Participant's benefit elections pursuant
to Section 6.2; provided, however, that if the Participant has
elected a Lump-Sum Payment under Section 6.4 and such election
was made and filed with the Committee or its delegate (at least
twelve months prior to death, in the case of any Non-Funded
Accrued Benefits) in the event of the Participant's death prior
to being paid any benefits hereunder, notwithstanding anything to
the contrary in Section 4.2, the Participant's Beneficiary shall
receive the Lump-Sum Payment within sixty days of the date on
which the Participant would have been entitled to commence
receipt of benefits, had he or she survived. For such purpose,
the Participant may designate a Beneficiary for the Lump-Sum
Payment, subject to the designation procedures specified in
Section 6.3. Funded Accrued Benefits shall be paid from the
Trust.
7
Section 6.2 All provisions of the Base Defined Benefit
Plan and the Super $aver Plus Plan consistent with this Plan will
apply in determining the amount of benefits hereunder, including,
but not limited to, social security offset provisions, early
retirement reductions, optional forms of benefit, pre-retirement
surviving spouse's annuity, and spousal consent requirements.
Section 6.3 Except as provided in Sections 6.1, 6.4 and 6.6,
Annual Defined Benefit Retirement Benefits under Article IV under
this Plan will be paid in monthly installments only, unless the
Committee in its sole discretion directs payment in another form.
The portion of the Annual Defined Benefit Retirement Benefit
and/or amounts credited under Article V that were satisfied by
amounts credited to the Account of an Active Funding Participant
shall be paid from amounts credited to such Participant's Account
through the Trust. A Participant entitled to benefits under
Article IV may elect any of the standard forms of monthly
payments provided under the Base Defined Benefit Plan, subject to
Section 6.4, provided that if a lump-sum under Section 6.4 or
Section 6.6 is not payable, the method selected must be the same
as that selected under the Base Defined Benefit Plan, unless the
Committee directs otherwise.
Section 6.4 In lieu of monthly payments pursuant to 6.3, a
Participant may elect to claim a lump-sum, one-time payment equal
to the present value of any Annual Defined Benefit Retirement
Benefits to be paid pursuant to Article IV of the Plan (the
"Lump-Sum Payment"). Such claim shall:
(a) be in writing,
(b) be in the form prescribed by the Company,
(c) be addressed to the Company's Vice President,
Human Resources, or successor, and
(d) shall be made by a Participant with respect to any
Non-Funded Accrued Benefit at least twelve months (or such
lesser period as the Committee may permit, in its sole
discretion) before he or she commences payments, or one year
before age sixty-five, whichever is the first to occur. A
lump-sum election may be made with respect to Funded Accrued
Benefits at any time before retirement.
In addition to the foregoing, the Participant must execute a
general release and provide consent of spouse, if married. In
calculating the Lump-Sum Payment, the interest rate shall be
equal to the applicable interest rate promulgated by the Internal
Revenue Service under section 417(e)(3) of the Code for the third
month preceding the Participant's retirement date. The mortality
rate shall be the 1983 GAM male table for male Participants, and
the 1983 GAM female table for female Participants. A lump-sum
election may be revoked if the Company is notified in writing (at
least twelve months prior to commencement of benefits, in the
case of Non-Funded Accrued Benefits). No later election of a
Lump-Sum Payment may be made after such revocation. Upon
acceptance of the lump-sum claim, the Lump-Sum Payment will be
paid to the Participant within thirty days of the Participant's
first receipt of benefits under the Base Defined Benefit Plan.
8
Section 6.5 Benefits under Article V shall be paid in a
lump-sum equal to the $uper $aver Plus Plan Account balance, net
of taxes. Benefits under Article V paid to a Particpant from the
Trust as a result of a credit to an Account shall be credited
against amount payable from the $uper $aver Plus Plan Account.
Notwithstanding Section 6.1, a Participant's election under the
$uper $aver Plus Plan to receive payment of $uper $aver Plus Plan
benefits in any form other than a lump-sum cash payment shall be
ineffective with respect to accrued benefits under Article V of
this Plan. Payment of benefits pursuant to Article V shall be
made in a lump-sum cash payment as of the date on which any post-
separation benefit commences under the $uper $aver Plus Plan. A
Participant may designate a Beneficiary or Beneficiaries to
receive benefits under Article V payable in the event of the
Participant's death, if any. Any such designation shall be made
in the manner required by the Committee or its delegate. If, for
any reason, there is no surviving designated Beneficiary,
benefits will be payable to the parties who would be entitled to
receive such amounts if they were paid under $uper $aver on
account of the Participant's death. Such amounts will be paid in
a lump-sum within sixty days following the date of the
Participant's death.
Section 6.6 Upon a Change in Control or Potential Change in
Control (each as defined in the 1998 Long-Term Incentive Plan of
AMR, or its successor plan) with respect to AMR, a Participant
will receive a lump-sum, one-time payment equal to the present
value of the remaining Annual Defined Benefit Retirement Benefit
to be paid pursuant to Article IV of the Plan (and the entire
amount credited to his or her Account pursuant to Article V, if
applicable) (the "Change in Control Payment"), unless the
Participant elects to continue to receive previously elected
monthly payments. Such an election shall:
(a) be in writing,
(b) be in a form prescribed by the Company,
(c) be addressed to the Company's Vice President,
Human Resources, or successor, and
(d) shall be made by the Participant within thirty
days following the Change in Control or the Potential Change
in Control.
The Change in Control Payment shall be computed by
assuming that payments under the Base Defined Benefit Plan would
commence at the earliest possible retirement age for the
Participant, assuming that the Participant separated from
employment as of the Change in Control or Potential Change in
Control. In the event a Participant is not vested in benefits
under the Base Defined Benefit Plan, he shall nevertheless be
deemed to have satisfied the vesting requirements of the Base
Defined Benefit Plan (and of the $uper $aver Plus Plan) for
purposes of computing the amount of the Change in Control
Payment.
Section 6.7 Prior to receiving the Change in Control
Payment attributable to the Annual Defined Benefit Retirement
Benefit, the Participant may be required to execute a general
release and to provide consent of spouse, if married. In
calculating the portion of a Change in Control Payment
attributable to an Annual Defined Benefit Retirement Benefit, the
interest rate shall be equal to the applicable interest rate
promulgated by the Internal Revenue Service under section 417(e)
(3) of the Code for the third month preceding the Change in
Control or Potential Change in Control. The mortality table
used shall be the 1983 GAM male table for male Participants,
and the 1983 GAM female table for female Participants. The
Change in Control Payments will be paid to the Participant within
sixty days following the Change in Control or the Potential
Change in Control.
9
Section 6.8 In the event the Participant has any
outstanding debt with the Company, such as for payment of taxes,
the Company or the Committee may withhold or deduct from any
payments to be made to the Participant under this Plan an
amount(s) equal to such outstanding debt.
ARTICLE VII
AMENDMENT AND TERMINATION
Section 7.1 The Board of Directors, or such person or
persons, including the Committee, as may be authorized in
writing by the Board of Directors, may amend or terminate the
Plan at any time.
Section 7.2 No such amendment or termination pursuant to
Section 7.1 shall adversely affect a benefit payable under this
Plan with respect to a Participant's employment by the Company
prior to the date of such amendment or termination unless such
benefit is or becomes payable under a successor plan or practice
adopted by the Board of Directors or its designee.
Section 7.3 Notwithstanding Sections 7.1 and 7.2 of the
Plan, no changes or amendments (including pertaining to
termination) to the Plan will be permitted after a Change in
Control or Potential Change in Control, as each of these terms
is defined in the 1998 Long Term Incentive Plan of AMR, or its
successor plan.
ARTICLE VIII
GENERAL CONDITIONS
Section 8.1 The right to receive benefits under the Plan
may not be anticipated, alienated, sold, transferred, assigned,
pledged, encumbered or subjected to any charge or legal process,
and if any attempt is made to do so or a person eligible for any
benefit becomes bankrupt, the interest under the Plan of the
person affected may be terminated by the Committee and the
Committee may in its sole discretion cause the same to be held or
applied for the benefit of one or more of the dependents of such
person.
Section 8.2 Notwithstanding the provisions in Section 8.1,
upon receipt by the Plan of a "domestic relations order" (as
defined in section 206(d)(3)(B)(ii) of the Act) purporting to be
a "qualified domestic relations order" (as defined in section
206(d)(3)(B)(i) of the Act), the Committee shall review such
order using the domestic relations order review procedures in
effect under the Base Defined Benefit Plan or $uper $aver, as
applicable to benefits under Article IV or Article V
respectively. Upon the determination that a domestic relations
order meets the Plan's requirements to be a qualified domestic
relations order, the "alternate payee" (as defined in section
206(d)(3)(K) of the Act) shall be eligible to receive benefits
payable under the terms of the qualified domestic relations
order. Notwithstanding the foregoing, however, an alternate
payee under a domestic relations order shall only be eligible to
receive benefits from the Plan when the Participant begins
receiving benefits from the Base Defined Benefit Plan (or the
$uper $aver Plus Plan, as applicable).
10
Section 8.3 All questions pertaining to the construction,
validity and effect of the Plan shall be determined in accordance
with the laws of the United States and the State of Texas.
Section 8.4 In the event of any act of God, war, natural
disaster, aircraft grounding, revocation of operating
certificate, terrorism, strike, lockout, labor dispute, work
stoppage, fire, epidemic or quarantine restriction, act of
government, critical materials shortage, or any other act,
whether similar or dissimilar, beyond the control of the Company
(each, a "Force Majeure Event"), which Force Majeure Event
affects the Company or its Subsidiaries or its Affiliates, the
Board of Directors, at its sole discretion, may suspend, delay,
defer or substitute (for such period of time as the Board of
Directors may deem necessary) any payments due currently or in
the future under the Plan, including, but not limited to, any
payments that have accrued to the benefit of a Participant but
have not yet been paid.
Section 8.5 With respect to Non-Funded Accrued Benefits,
this non-qualified plan shall be, and is intended to be, a plan
that is unfunded and maintained by the Company to provide
deferred compensation to a select group of management or highly-
compensated employees, pursuant to sections 201(2), 301(a)(3),
and 401(a) (1) of the Act. With respect to Funded Accrued
Benefits, this Plan is an "employee pension benefit plan"
described in section 3(2) of the Act that is an "individual
account plan" and "defined contribution" plan as described in
section 3(34) of the Act that is not subject to Part 3 of
Subtitle B of Title I of the Act, pursuant to section 301(a)(8)
of the Act.
Section 8.6 American Airlines, Inc., is the sponsor of the
Plan and the Committee or its delegate shall be the Plan
Administrator, and shall have authority to manage the operation
and administration of the Plan. The Committee may designate one
or more individuals to carry out any of its administrative
responsibilities in connection with the Plan. The Company may
employ one or more persons to render advice to any director,
officer or employee of the Company with respect to such
individual's responsibilities under the Plan. The Committee may
act by majority vote of its members at a meeting or by a signed
writing. The Committee may engage agents to assist it and may
engage legal counsel who may be legal counsel for the Company.
All reasonable expenses incurred by the Committee. In
administering the Plan, the Committee may conclusively rely upon
the Company's payroll and personnel records and employee benefit
plan records maintained in the ordinary course of business. The
Board of Directors may remove any member of a Committee at any
time and a member may resign by written notice to the Board of
Directors. The Committee shall have the exclusive discretionary
authority to interpret and construe the terms of the Plan and the
exclusive discretionary authority to determine eligibility for,
and the amount of, all benefits hereunder. Any such
determinations or interpretations of the Plan adopted by the
Committee shall be final and conclusive and shall bind all
parties.
11
ARTICLE IX
FUNDING
Section 9.1 The Company will pay the entire cost of the
Plan, through the Trust, directly or under Section 10.2 as
applicable. Amounts payable to an Active Funding Participant will
first be paid from the Trust through amounts credited to such
Participant's Account. Any remaining amounts payable, and all
amounts payable to Non-Active Funding Participants shall be paid
as they become payable from the Company's general assets or
through a trust established pursuant to Section 10.2.
ARTICLE X
TRUST
Section 10.1 The Company established the Trust, an
irrevocable trust effective October 15, 2002, pursuant to
the Trust Agreement Under Supplemental Retirement Program for
Officers of American Airlines, Inc., to fund the anticipated
after-tax distributions of Funded Accrued Benefits under the
Plan, as determined by the Committee as of October 1, 2002.
Wachovia Bank National Association will serve as the initial
Trustee of the Trust and will hold the Trust assets for the
purpose of accumulating funds to pay benefits under the Plan as
they become due and payable. The Trust is a so-called "secular
trust" for Federal income tax purposes. The assets of the Trust
are not subject to the claims of creditors of the Company or any
of its corporate affiliates. Moreover, the contributions to the
Trust and the Trust's earnings will generally be taxable income
to Participants, although subsequent distributions from the
already taxed amounts will be made to Participants free of
Federal income tax.
Section 10.2 To assist in the payment of Non-Funded Accrued
Benefits following a Change in Control or Potential Change in
Control (each as defined in the 1998 Long-Term Incentive Plan of
AMR, or its successor plan) with respect to AMR, the Board of
Directors or the Company's General Counsel or the Company's
Corporate Secretary may establish a trust or utilize a trust
heretofore established, to fund Non-Funded Accrued Benefits under
the Plan.
Section 10.3 The trust which may be established or
otherwise utilized pursuant to Section 10.2 will be maintained:
(a) with a nationally recognized banking institution
with experience in serving as a trustee for such matters,
(b) pursuant to such documentation as recommended by
outside counsel to the Company, and
(c) funded so as to enable the trust to pay some or
all of the Non-Funded Accrued Benefits contemplated under the
Plan, as may be determined by the Company's independent
compensation consultant, selected by the Company, in its sole and
absolute discretion.
12
Section 10.4 In addition, the Board of Directors, the
Company's General Counsel or the Company's Corporate Secretary
may take those additional actions deemed reasonably necessary to
accomplish the stated purpose of Section 10.2.
ARTICLE XI
ERISA RIGHTS
Section 11.1 As a Participant in any Funded Accrued
Benefits under the Plan, you are entitled to certain rights and
protections under ERISA. ERISA provides that all Plan
Participants shall be entitled to:
Examine, without charge, at the Plan Administrator's office,
all Plan documents, including copies of all documents filed
with the U.S. Department of Labor, such as Summary Annual
Reports (SARs) and a copy of the latest Form 5500 annual report
filed by the Plan with the U.S. Department of Labor and
available at the Public Disclosure Room of the Pension and
Welfare Benefit Administration.
Obtain copies of all Plan documents and other Plan
information including copies of the latest Form 5500 annual
report and current Summary Plan Description (SPD) upon written
request to the Plan Administrator. The Plan Administrator may
charge a reasonable amount for the copies.
Receive a summary of the Plan's annual financial report
(SAR). The Plan Administrator is required by law to furnish
each Participant with a SAR.
Obtain a statement telling you whether you have a right to
receive a pension at Normal Retirement Age under the Plan and,
if so, what the benefit amount would be at Normal Retirement
Age if you were to stop working now. This statement must be
requested in writing and is not required to be given more often
than once a year. This statement must be provided free of
charge.
In addition to creating rights for Plan Participants, ERISA
imposes duties upon the people responsible for the Plan's
operation. The people who supervise the Plan's operation, called
"Fiduciaries," have a duty to do their jobs prudently and solely
in the interest of you and other Plan Participants and
beneficiaries. Fiduciaries who violate ERISA may be removed and
required to make good any losses they have caused the Plan.
If a claim for a benefit is denied or ignored in whole or in
part, you must receive a written explanation of the reason for
the denial. You have the right to have the Plan Administrator
review and reconsider the claim. No one, including an employer
or any other person, may fire you or discriminate against you in
any way to prevent you from obtaining a benefit from the Plan or
exercising your rights under ERISA.
Under ERISA, there are steps you can take to enforce the above
rights. For instance, if you request materials from the Plan
Administrator and do not receive them within 30 days, you may sue
in federal court. The court may require the Plan Administrator to
provide the materials and pay you up to $110 a day until you
receive the materials -- unless the materials were not sent
because of reasons beyond the Plan Administrator's control. If
you have a claim for benefits that is denied or ignored, in whole
or in part, you may file suit in a state or federal court. In
addition, if you disagree with the Plan's decision or lack
thereof concerning the qualified status of a domestic relations
order, you may file suit in federal court.
13
If the Plan's Fiduciaries misuse the Plan's money, or if you are
discriminated against for asserting your rights, you may seek
assistance from the U.S. Department of Labor, or you may file
suit in a federal court. The court will decide who should pay
court costs and legal fees. If you are successful, the court may
order the person you have sued to pay those costs and fees. If
you lose (i.e., if the court finds your claim frivolous), the
court may order you to pay these costs and fees.
If you have any questions about the Plan, contact the Plan
Administrator. If there are any questions about this section or
about your rights under ERISA, you should contact the nearest
office of the Pension and Welfare Benefits Administration of the
U.S. Department of Labor listed in your telephone directory or
the Division of Technical Assistance and Inquiries, Pension and
Welfare Benefits Administration, U.S. Department of Labor, 200
Constitution Avenue, N.W. Washington, D.C 20210. You may also
obtain certain publications about your rights and
responsibilities under ERISA by calling the publications hotline
of the Pension and Welfare Benefits Administration.
ARTICLE XII
CLAIMS PROCEDURES
Section 12.1 A claim for retirement benefits under the Plan
must be submitted to the Plan Administrator at the time and in
the manner prescribed by the Plan Administrator.
If the Plan Administrator determines that you are not entitled to
receive all or part of the benefits you claim, a notice will be
provided to you within a reasonable period of time, but no later
than 90 days from the day your claim was received by the Plan
Administrator. This notice (which will be provided to you in
writing by mail or hand delivery, or through email) will
describe:
The Plan Administrator's determination;
The basis for the determination (along with appropriate
references to pertinent Plan provisions on which the denial is
based);
A description of any additional material or information
necessary to perfect the claim and an explanation of why such
material is necessary, and
The procedure you must follow to obtain a review of the
determination, including a description of the appeals procedure
and your right to bring a cause of action for benefits under
section 502(a) of ERISA. This notice will also, if appropriate,
explain how you may properly complete your claim and why the
submission of additional information may be necessary.
14
In certain instances, the Plan Administrator may not be able to
make a determination within 90 days from the day your claim for
benefits was submitted. In such situations, the Plan
Administrator, in its sole and absolute discretion, may extend
the 90-day period for up to 180 days, as long as the Plan
Administrator provides you with a written notice
within the initial 90-day period that explains:
The reason for the extension, and
The date on which a decision is expected.
Section 12.2 If your claim for benefits is denied, either
in whole or in part, you may appeal the Plan Administrator's
denial by requesting a review of your claim by the Committee (or
its delegate). Your written request for an appeal must be
received by the Plan Administrator within 60 days of the date you
received your notice that the Plan Administrator denied your
claim.
As part of your appeal, you may submit written comments,
documents, records and other information relating to your claim
for benefits. You may also request reasonable access to, and
copies of, all documents, records, and other information relevant
to your claim. You will not be charged for this information. The
Committee's (or its delegate's) review of the Plan
Administrator's adverse determination will take into account all
comments, documents, records and other information you submitted,
without regard to whether such information was submitted and
considered in the Plan Administrator's initial determination of
your claim.
If, after reviewing your appeal and any further information that
you have submitted, the Committee (or its delegate) denies your
claim, either in whole or in part, a notice (which will be
provided to you in writing by mail or hand delivery, or through
email) will be provided to you within a reasonable period of
time, but not later than 60 days from the day your request for a
review was received by the Plan Administrator. In the event that
an extension of time for processing is required, you will be
provided a written notice of the extension not later than 60 days
from the day your request for a review was received by the Plan
Administrator. In such situations, the Committee (or its
delegate), in its sole and absolute discretion, may extend the 60-
day period for up to 120 days, as long as the Committee (or its
delegate) provides you with a written notice within the initial
60-day period that explains:
The reason for the extension, and
The date on which a decision is expected.
The notice describing the Committee's (or its delegate's)
decision will describe:
The specific reason or reasons for its decision, including
any adverse determinations;
References to the specific Plan or Base Defined Benefit Plan
or $uper $aver Plus Plan provisions on which the Committee (or
its delegate) based its determination;
Your right to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records, and
other information relevant to your claim;
15
A description of any voluntary appeals procedures, if any,
and your right to obtain information about such procedures, and
Your right to bring a cause of action for benefits under
section 502(a) of ERISA.
ARTICLE XIII
FINALITY OF DECISIONS OR ACTS
Section 13.1 The Committee has the express authority to
elect the actuarial assumptions to be used in funding any
benefits payable under the Plan, to interpret any provision of
this Plan and to determine, at its sole discretion, the meaning
and application of any such provision as to each Paricipant or
Beneficiary under the Plan, in accordance with the facts and
circumstances of each particular claim. Except for the right of
a Participant or Beneficiary to appeal the denial of a claim, any
decision or action of the Committee, within their scope of
authority, shall be final and binding on all persons claiming a
right to benefits under the Plan. No benefit shall be payable
that the Committee does not deem is payable under the terms of
the Plan.
ARTICLE XIV
GENERAL INFORMATION ABOUT YOUR PLAN
Plan Name: The Supplemental Executive Retirement Program
(SERP) for Officers of American Airlines,
Inc.
Plan Sponsor: American Airlines, Inc.
4333 Amon Carter Blvd.
MD 5146
Fort Worth, TX 76155
Employer ID No.: 13-1502798
Plan Number: 888
Type of Plan: As described in Section 8.5
Plan Administrator: American Airlines, Inc.
4333 Amon Carter Blvd.
MD 5112
Fort Worth, TX 76155
Telephone: 817-967-3558
16
Legal Agent: C T Corporation System
Registered Office
350 North St. Paul Street
Dallas, TX 75201
Trustee: Wachovia Bank National Association
Trustee(s) Address: Wachovia Bank National Association
Attn: Executive Services
One West Fourth Street
Winston-Salem, NC 27150
Funding Arrangement: Company Assets for Non-Funded Accrued Benefits
Trust for Funded Accrued Benefits
Plan Year: January 1 to December 31
17
AS AMENDED AND RESTATED EFFECTIVE OCTOBER 15, 2002.
American Airlines, Inc.
By: /s/ Charles D. MarLett
Name & Title: Charles D. MarLett,
Corporate Secretary
18
EXHIBIT B
SUPPLEMENT NO. 9
TO
$UPER $AVER
$UPER $AVER PLUS
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.1 Account 1
Section 1.2 AMS Employee 1
Section 1.3 Choice Year 1
Section 1.4 Company 1
Section 1.5 Default Election or Default 2
Section 1.6 Election or Elect 2
Section 1.7 Election Period 2
Section 1.8 Eligibility Service 2
Section 1.9 Employer Contribution Account 2
Section 1.10 Employer Matching Contributions 2
Section 1.11 Five-Year Break in Service 2
Section 1.12 Laid Off Reno Employees 2
Section 1.13 One-Year Break in Service 2
Section 1.14 Pension Plan 2
Section 1.15 Pensionable Pay 3
Section 1.16 Restoration Account 3
Section 1.17 Restoration Amount 3
Section 1.18 Sabre Dual Retirees 3
Section 1.19 $uper $aver Plus 3
Section 1.20 Vesting Service 3
ARTICLE II ELIGIBILITY 3
Section 2.1 Eligibility to Participate 3
Section 2.2 Commencement of Participation 4
ARTICLE III CONTRIBUTIONS 5
Section 3.1 Employer Matching Contributions 5
ARTICLE IV VESTING 5
Section 4.1 Participant Vesting 5
Section 4.2 Crediting Vesting Service 6
Section 4.3 Forfeiture and Restoration of Non-Vested
Benefits 6
ARTICLE V WITHDRAWALS DURING EMPLOYMENT 8
Section 5.1 Loans 8
Section 5.2 Withdrawals 8
SUPPLEMENT NO. 9 TO $UPER $AVER
$UPER $AVER PLUS
INTRODUCTION
Effective January 1, 2001, American Airlines, Inc.
("Company") establishes $uper $aver Plus for the benefit of
its eligible AMS Employees pursuant to the terms and
provisions of this Supplement No. 9 to the Plan. $uper $aver
Plus is intended to supplement the provisions of, and form a
part of, the Plan with respect to eligible AMS Employees (as
hereinafter defined, but specifically including Employees of
the Company who are classified as an "agent," "management,"
"specialist," "representative," "support personnel,"
"officer," or "non-union employee" and excluding regular
Employees of any other Affiliated Company and Employees of
the Company who are not specifically included or who are
covered by a collective bargaining agreement) and, in
conjunction with the other provisions of the Plan, to
constitute a qualified plan under sections 401(a) and 401(k)
of the Code. Therefore, except as provided otherwise in this
Supplement No. 9, $uper $aver Plus shall be administered in
accordance with the provisions of the Plan.
ARTICLE I
DEFINITIONS
In addition to the definitions set forth in the Plan,
the following definitions, when used in this Supplement,
shall have the respective meanings set forth below unless
the context clearly indicates otherwise:
Section 1.1 Account means, in addition to the Accounts
described in Section 2.1 of the Plan, a Participant's
Employer Contribution Account, maintained by the Trustee or
the Recordkeeper reflecting the monetary value of the
undivided interest in the Trust Fund of each Participant,
each Former Participant and each Beneficiary attributable to
Employer Matching Contributions made pursuant to Super Saver
Plus on his behalf in accordance with Section 3.1 hereof.
Section 1.2 AMS Employee means:
(a) a regular non-union employee of the Company,
(b) whose job is classified as agent, management,
specialist, representative, support personnel, officer or
other non-union employee, and
(c) who is paid on the Company's U.S. payroll,
including Puerto Rico and the U.S. Virgin Islands.
Section 1.3 Choice Year means a year in which an AMS
Employee is given the opportunity to choose between
participating in $uper $aver Plus or the Pension Plan.
1
Section 1.4 Company means American Airlines, Inc.
Section 1.5 Default Election or Default means the
decision which will determine whether an AMS Employee will
participate in $uper $aver Plus or the Pension Plan in the
event an Election is not made.
Section 1.6 Election or Elect means an affirmative
choice made by an AMS Employee to participate in $uper $aver
Plus or the Pension Plan.
Section 1.7 Election Period means the 90 day period
in which an Election may be made.
Section 1.8 Eligibility Service means a 12 month
period of service with an Affiliated Employer, commencing on
the date an Employee first performs an Hour of Service for
an Affiliated Employer and, for each Plan Year thereafter,
commencing with first day of the Plan Year that includes the
first anniversary of the date specified above, during which
the Employee performs at least the requisite number of Hours
of Service as determined under the Pension Plan or other
applicable plan. In the case of an Employee employed as an
American Airlines pilot or an American Airlines flight
attendant, the applicable plan is the American Airlines,
Inc. Pilot Retirement Benefit Program or The Retirement
Benefit Plan of American Airlines, Inc. for Flight
Attendants, respectively; and for an Employee represented by
the Transport Workers Union of America, AFL-CIO, the
applicable plan is The Retirement Benefit Plan of American
Airlines, Inc. Employees Represented by the Transport Worker
Union of American, AFL-CIO.
Section 1.9 Employer Contribution Account means the
portion of the individual Account maintained by the Trustee
or the Recordkeeper for each Participant, each Former
Participant and each Beneficiary showing the monetary value
of the person's individual interest in the Trust Fund
attributable to Employer Matching Contributions.
Section 1.10 Employer Matching Contributions means
contributions paid by the Company in accordance with Section
3.1 hereof.
Section 1.11 Five-Year Break in Service means any
five consecutive One-Year Breaks in Service.
Section 1.12 Laid Off Reno Employees means the former
Reno Air employees who were laid off in July 2000.
Section 1.13 One-Year Break in Service means a Plan
Year during which an Employee has fewer than 501 Hours
of Service.
Section 1.14 Pension Plan means The Retirement Benefit
Plan of American Airlines, Inc. for Agents, Management,
Specialists, Support Personnel and Officers.
2
Section 1.15 Pensionable Pay means the compensation
used to determine benefits under the Pension Plan and
Section 3.1 of this Supplement No. 9.
Section 1.16 Restoration Account means a sub-account
of the Employer Contribution Account to which the
Restoration Amount is credited in accordance with Section
4.2(b) of this Supplement No. 9.
Section 1.17 Restoration Amount means the non-vested
amount previously forfeited from a Former Participant's
Account by reason of a distribution or deemed distribution.
Section 1.18 Sabre Dual Retirees means the group of
Employees employed by the Company and Sabre Inc. and defined
as "dual retirees" within the administrative records of the
Pension Plan.
Section 1.19 $uper $aver Plus means the program of
benefits under this Supplement No. 9 to the Plan.
Section 1.20 Vesting Service means service described
in Section 4.2 hereof required to be performed by a
Participant to enable such Participant to obtain
nonforfeitable rights to Employer Matching Contributions in
accordance with Section 4.1 hereof.
ARTICLE II
ELIGIBILITY
Section 2.1 Eligibility to Participate. Effective on
and after January 1, 2001, an AMS Employee is eligible
to receive Employer Matching Contributions as described in
Section 3.1 of this Supplement No. 9 if he has completed the
required period of Eligibility Service and he Elects or
Defaults to participate in $uper $aver Plus in accordance
with the terms of this Section 2.1. Notwithstanding the
foregoing, an Employer Matching Contribution will be
contributed to a Participant's Employer Matching Account
only to the extent provided in Section 3.1.
(a) Choice Year 2000. All AMS Employees are entitled
to choose to participate in $uper $aver Plus or the Pension
Plan as follows:
(i) AMS Employees Hired Prior to January 1, 2000.
These AMS Employees may Elect to participate in $uper
$aver Plus. They will Default to participation in the
Pension Plan.
(ii) AMS Employees Hired On or After January 1,
2000. These AMS Employees may Elect to participate in
the Pension Plan. They will Default to participation in
$uper $aver Plus.
(iii) AMS Employees on Leave of Absence as of
December 31, 2000, with Right of Recall. These AMS
Employees will be given an Election Period during which
to make an Election upon their return from leave of
absence. The Election Period shall commence on the
first day of the month following the month in which
they return to work. They will Default to participation
as described in (i) or (ii) above as applicable.
3
(iv) AMS Employees Transferred to Non-Eligible
Employment on or before December 31, 2000. These AMS
Employees will be given an Election Period during which
to make an Election if they subsequently return to a
position as an eligible AMS Employee. The Election
Period shall commence on the first day of the month
following the month of transfer. They will Default to
participation as described in (i) or (ii) above as
applicable.
(b) Choice Year 2001. Those Employees who in 2001 are
newly hired AMS Employees (including Employees whose
employment terminated prior to January 1, 2001 and who were
reemployed as an AMS Employee in 2001) or Employees
transferred to positions as AMS Employees are entitled to
choose to participate in $uper $aver Plus or the Pension
Plan, and they are eligible to receive Employer Matching
Contributions commencing after they meet the eligibility
requirements and Elect or Default to participation in $uper
$aver Plus as follows:
(i) Newly Hired AMS Employees. These AMS
Employees may Elect during their Election Period to
participate in the Pension Plan. They will Default to
$uper $aver Plus. Their Election Period commences on
the first day of the month after completion of six
months of service following the date of hire.
(ii) Employees Transferred to Positions as
AMS Employees. Except as provided in (a)(iv) above,
these AMS Employees may Elect during their Election
Period to participate in the Pension Plan. They will
Default to $uper $aver Plus. Their Election Period
commences on the first day of the month following the
month of transfer.
(iii) Notwithstanding (b)(ii) above, the
following employee groups may Elect to participate in
$uper $aver Plus but they will Default to the Pension
Plan, and their Election Period commences on the first
day of the month following the month of transfer:
(A) Sabre Dual Retirees
(B) Laid Off Reno Employees
(C) Employees transferred from a
position covered by a collective bargaining
agreement.
(iv) Notwithstanding anything to the contrary
in (b)(i), (ii), or (iii) above, once an AMS Employee
has an Election or a Default Election on file, that
Election or Default Election will not be changed due to
a subsequent return to a position as an AMS Employee.
4
(c) No other Employee of the Company or any Affiliated
Company is eligible to Participate in $uper $aver Plus.
Section 2.2 Commencement of Participation.
Participation in $uper $aver Plus shall commence as soon as
administratively possible after the AMS Employee satisfies
the conditions of eligibility, including completion of the
required period of Eligibility Service and making an
Election or Default Election, in accordance with Section 2.1
hereof, but in no event shall such participation commence
later than 6 months after all such conditions have been
satisfied.
ARTICLE III
CONTRIBUTIONS
Section 3.1 Employer Matching Contributions.
(a) Subject to the provisions of the Plan,
including the restrictions and limitations contained in
ARTICLE VI and ARTICLE VII of the Plan, commencing on and
after the Effective Date, the Company shall contribute for
each Plan Year as an Employer Matching Contribution 100% of
the Employee Before-tax Contributions up to 5.5% of a
Participant's Pensionable Pay contributed to the Plan on
behalf of such Participant as an Employee Before-tax
Contribution. For purposes of this Section 3.1, the
determination of the percentage of a Participant's
Pensionable Pay contributed to the Plan on behalf of such
Participant shall be made on a year-to-date basis.
(b) Employer Matching Contributions made to the
Plan pursuant to this Section 3.1 generally shall be made as
soon as administratively feasible following each pay date,
and in no event later than the date described in Section 4.7
of the Plan.
ARTICLE IV
VESTING
Section 4.1 Participant Vesting.
(a) A Participant's nonforfeitable interest in
his Employer Contribution Account shall be determined as
follows:
Years of Vesting Service Vesting Percentage
Less than 3 0%
3 or more 100%
Notwithstanding anything to the contrary contained in this
Section 4.1, amounts credited to a Participant's Employer
Contribution Account shall become fully vested upon the
occurrence, while employed by an Affiliated Company, of any
of the following events, whether or not he has then
completed the years of Vesting Service required for full
vesting:
(i) the Participant's attainment of his
Normal Retirement Date
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(ii) the Participant's Disability; or
(iii) the Participant's death.
(b) The value of a Participant's nonforfeitable
interest in his Employer Contribution Account shall be
determined as of the Valuation Date.
Section 4.2 Crediting Vesting Service.
(a) For purposes of Section 4.1, a Participant
will be credited with one year of Vesting Service for each
Plan Year in which he completes 1,000 Hours of Service. All
service for an Affiliated Company will be included in
determining such Employee's years of Vesting Service. The
Recordkeeper may establish separate subaccounts for
Employees, or classifications of Employees, as necessary to
calculate the vesting requirements of this $uper $aver Plus.
(b) Except as provided in the following sentence,
in the case of an Employee who terminates employment with an
Employer and who later resumes employment with the Employer,
years of Vesting Service prior to his resumption of
employment shall be credited to such Employee. However, if a
Participant did not have a nonforfeitable right to amounts
credited to his Employer Contribution Account at the time of
his termination of employment with an Employer and the
Participant incurs a Five-Year Break in Service, his
employment with an Employer after such Five-Year Break in
Service shall not be taken into account in determining the
Participant's nonforfeitable percentage in his Employer
Contribution Account derived from Employer Matching
Contributions that accrued prior to such Five-Year Break in
Service.
(c) Solely for the purpose of determining a Five-
Year Break in Service, the Plan shall credit each
Participant with hours of service for each hour in any
customary period of work, during which the Participant is on
an unpaid leave of absence granted as such by an Employer or
a parental leave of absence, but only to the extent
necessary to prevent a One-Year Break in Service, and in
accordance with applicable law and uniformly administered
policy. Persons on an unpaid military leave shall receive
hours of service credit for the period that their employment
rights are protected by law, to the extent required by law.
Section 4.3 Forfeiture and Restoration of Non-Vested
Benefits.
(a) If a Participant terminates employment with
an Affiliated Company prior to the time he is fully vested
in amounts credited to his Employer Matching Account, the
non-vested portion of the Participant's benefits under $uper
$aver Plus, if any, shall be forfeited, subject to
restoration as provided in Section 4.3(c) hereof, as of the
earlier to occur of:
(i) in the case where the Participant does
not receive a distribution of his entire vested Account
balance, on the last day of the Plan Year in which the
Participant first incurs a Five-Year Break in service
or
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(ii) immediately upon receipt of his
distribution if the Participant receives a distribution
of his entire vested Account balance.
(b) For purposes of this Section 4.2(c), if the
vested balance of a Participant's Employer Matching Account
is zero, the Participant shall be deemed to have received a
distribution of such vested Account at the time of his
termination of employment. The forfeited amount shall remain
in the Trust Fund and shall be applied first to restore the
Employer Contribution Accounts of Former Participants in
accordance with Section 4.3(c) and then to reduce future
Employer Matching Contributions under $uper $aver Plus for
the Plan Year during which the effective date of the
distribution (or, if applicable, the Five-Year Break in
Service) occurs.
(c) In the case of a Former Participant whose non-
vested Account balance was forfeited by reason of a
distribution (or deemed distribution) to the Participant, if
such individual returns to employment with an Employer prior
to incurring a Five-Year Break in Service, the amount
previously forfeited from such individual's Account shall be
restored (unadjusted for any gains or losses) as part of
such individual's Account and credited to an Employer
contribution sub-account, hereinafter called the
"Restoration Account", if the Participant repays to the Plan
the full amount of the distribution prior to the earlier of:
(i) the Plan's termination, or
(ii) the lapse of five years following the
Participant's reemployment by the Employer (provided
that the Participant must be an Employee at the time of
repayment.)
(d) A Participant's forfeiture incurred as a
result of a deemed distribution shall be automatically
restored if the Participant returns to employment with an
Employer prior to the earlier of:
(i) the Plan's termination, or
(ii) his incurring a Five-Year Break in
Service.
(e) As of the Valuation Date that immediately
follows the repayment
described in Section 4.3(c), and prior to any allocation of:
(i) the Trust Fund earnings pursuant to
Section 8.5 of the Plan,
(ii) forfeitures pursuant to Section 4.3(a)
hereof or
(iii) Employer Matching Contributions
pursuant to Section 3.1 hereof, there shall be
allocated to the Participant's Restoration Account an
amount (the "Restoration Amount") of the Trust Fund
equal to the amount of his previously forfeited non-
vested Account balance. The Restoration Amount shall be
credited first against forfeitures arising for the Plan
Year, and if such forfeitures are not sufficient to
satisfy the Restoration Amount in full, the Restoration
Amount shall be satisfied out of Employer contributions
for the Plan Year, which contributions shall be
supplemented for the Plan Year by an amount equal to
such remainder. The Restoration Amount shall not be
deemed an Annual Addition, as defined Section 7.2(a)(i)
of the Plan, or portion thereof for any Limitation
Year. The Pension Benefits Administration Committee
shall give timely notice to any rehired Employee, if
such Employee is eligible to make a repayment, of his
right to make such repayment before the expiration of
the periods specified above, and such notice shall also
include an explanation of the consequences of not
making such repayment.
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ARTICLE V
WITHDRAWALS DURING EMPLOYMENT
Section 5.1 Loans. In determining the amount
available to a Participant for a loan under Section 11.2 of
the Plan, the amount of the Participant's Employer
Contributions Account may be included with the Participant's
Employee After-tax Account, the Participant's Employee
Before-Tax Contribution Account, Profit Sharing Fund Account,
Rollover Account and Prior Plan Account, if any, but only
to the extent the Employer Contributions Account is vested.
Section 5.2 Withdrawals. No in service withdrawals
of amounts credited to Employer Matching Contribution
Accounts are allowed.