EXHIBIT 10.4
EXH 10.4
AFLAC INCORPORATED
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
EXH 10.4-i
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Actuarial Equivalent . . . . . . . . . . . . . . . . . . . 2
1.2 Administrative Committee . . . . . . . . . . . . . . . . . 2
1.3 Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Annual Compensation. . . . . . . . . . . . . . . . . . . . 2
1.5 Annual Retirement Benefit. . . . . . . . . . . . . . . . . 2
1.6 Average Annual Compensation. . . . . . . . . . . . . . . . 2
1.7 Benefit Commencement Date. . . . . . . . . . . . . . . . . 2
1.8 Board. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.9 Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 Change in Control. . . . . . . . . . . . . . . . . . . . . 3
1.11 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.12 Company. . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.13 Compensation Committee . . . . . . . . . . . . . . . . . . 4
1.14 Confidential Information . . . . . . . . . . . . . . . . . 4
1.15 Contiguous Consulting Agreement. . . . . . . . . . . . . . 4
1.16 Delayed Early Retirement Date. . . . . . . . . . . . . . . 4
1.17 Disability or Disabled . . . . . . . . . . . . . . . . . . 5
1.18 Early Retirement Date. . . . . . . . . . . . . . . . . . . 5
1.19 Effective Date . . . . . . . . . . . . . . . . . . . . . . 5
1.20 Eligible Employee. . . . . . . . . . . . . . . . . . . . . 5
1.21 Employment Date. . . . . . . . . . . . . . . . . . . . . . 5
1.22 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23 Final Base Pay . . . . . . . . . . . . . . . . . . . . . . 5
1.24 Good Reason. . . . . . . . . . . . . . . . . . . . . . . . 5
1.25 Grandfathered Participant. . . . . . . . . . . . . . . . . 6
1.26 Joint and 50% Survivor Annuity . . . . . . . . . . . . . . 6
1.27 Normal Retirement Date . . . . . . . . . . . . . . . . . . 7
1.28 Participant. . . . . . . . . . . . . . . . . . . . . . . . 7
1.29 Participation Date . . . . . . . . . . . . . . . . . . . . 7
1.30 Pension Plan . . . . . . . . . . . . . . . . . . . . . . . 7
1.31 Pension Plan Benefit . . . . . . . . . . . . . . . . . . . 7
1.32 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.33 Qualifying Termination . . . . . . . . . . . . . . . . . . 7
1.34 Single Life Annuity. . . . . . . . . . . . . . . . . . . . 7
1.35 Surviving Spouse . . . . . . . . . . . . . . . . . . . . . 8
1.36 Total Payments . . . . . . . . . . . . . . . . . . . . . . 8
1.37 Trade Secret . . . . . . . . . . . . . . . . . . . . . . . 8
1.38 Year of Employment . . . . . . . . . . . . . . . . . . . . 8
1.39 Year of Participation. . . . . . . . . . . . . . . . . . . 8
ARTICLE II ELIGIBILITY AND PARTICIPATION. . . . . . . . . . . . . 8
2.1 Selection of Participants. . . . . . . . . . . . . . . . . 8
2.2 Cessation of Participation . . . . . . . . . . . . . . . . 9
2.3 Termination of Employment Before Early Retirement Date;
Removal from Participation . . . . . . . . . . . . . . . . 9
EXH 10.4-ii
ARTICLE III BENEFITS. . . . . . . . . . . . . . . . . . . . . . . 9
3.1 Eligibility for Benefits . . . . . . . . . . . . . . . . . 9
3.2 Normal Retirement Benefit. . . . . . . . . . . . . . . . . 10
3.3 Delayed Early Retirement Benefit . . . . . . . . . . . . . 10
3.4 Early Retirement Benefit . . . . . . . . . . . . . . . . . 11
3.5 Reduced Early Retirement Benefit . . . . . . . . . . . . . 11
3.6 Payment of Annual Retirement Benefit . . . . . . . . . . . 11
3.7 Change in Control. . . . . . . . . . . . . . . . . . . . . 12
3.8 Noncompetition . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Confidential Information . . . . . . . . . . . . . . . . . 14
3.10 Death Benefit. . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V SOURCE OF FUNDS . . . . . . . . . . . . . . . . . . . . 15
5.1 Source of Funds. . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI ADMINISTRATIVE AND COMPENSATION COMMITTEES . . . . . . 15
6.1 Action of Administrative Committee . . . . . . . . . . . . 15
6.2 Rights and Duties of Administrative Committee. . . . . . . 16
6.3 Rights and Duties of Compensation Committee. . . . . . . . 16
6.4 Compensation, Indemnity and Liability. . . . . . . . . . . 16
6.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VII AMENDMENT AND TERMINATION . . . . . . . . . . . . . . 17
7.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Termination of Plan. . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 17
8.1 Taxation . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 No Employment Contract . . . . . . . . . . . . . . . . . . 17
8.3 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.4 Gender and Number. . . . . . . . . . . . . . . . . . . . . 18
8.5 Successors . . . . . . . . . . . . . . . . . . . . . . . . 18
8.6 Legal Expenses . . . . . . . . . . . . . . . . . . . . . . 18
8.7 Assignment of Benefits . . . . . . . . . . . . . . . . . . 18
8.8 Legally Incompetent. . . . . . . . . . . . . . . . . . . . 18
8.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 18
EXH 10.4-iii
AFLAC INCORPORATED
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
Effective as of the 1st day of January, 2001, AFLAC Incorporated, a
corporation duly organized and existing under the laws of the State of
Georgia (the "Company"), hereby amends and restates the AFLAC Incorporated
Supplemental Executive Retirement Plan (the "Plan").
BACKGROUND AND PURPOSE
A. PURPOSE. The primary purpose of the Plan is to provide
supplemental retirement income to selected executives of the Company and its
affiliated companies.
B. TYPE OF PLAN. The Plan constitutes an unfunded, nonqualified
deferred compensation plan that benefits certain designated employees who
are within a select group of key management or highly compensated employees.
STATEMENT OF AGREEMENT
To establish the Plan with the purposes and goals as hereinabove
described, the Company hereby sets forth the terms and provisions as
follows:
EXH 10.4-1
ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with an
initial capital letter, shall have the meaning set forth below unless a
different meaning plainly is required by the context.
1.1 ACTUARIAL EQUIVALENT means an amount of equivalent value
determined by applying the Unisex Pension 1984 Mortality Table and a 7% rate
of interest; provided, consistent with the terms of Section 7.1, the
Administrative Committee may, in its sole discretion from time to time,
modify this rate of interest.
1.2 ADMINISTRATIVE COMMITTEE means the committee designated by the
Compensation Committee to act on behalf of the Company to administer the
Plan. If at any time the Compensation Committee has not designated an
Administrative Committee, the Compensation Committee shall serve as the
Administrative Committee. Subject to the limitation in Section 6.1 relating
to decisions which affect solely their own benefits under the Plan,
individuals who are management level employees and/or Participants may serve
as members of the Administrative Committee.
1.3 AFFILIATE means (i) any corporation or other entity that is
required to be aggregated with the Company under Code Sections 414(b), (c),
(m) or (o), and (ii) any other entity in which the Company has an ownership
interest and which the Company designates as an Affiliate for purposes of
the Plan.
1.4 ANNUAL COMPENSATION means the amount actually paid to a
Participant for services performed as an employee (but not as a consultant)
during a relevant calendar year as wages, salaries for professional
services, and cash bonuses. Annual Compensation for a relevant calendar
year shall also include compensation (i) contributed by the Company on
behalf of a Participant pursuant to a salary reduction agreement which is
not includable in the gross income of the Participant under Code Sections
125, 402(a)(8) or 402(h), or (ii) deferred by the Company on behalf of a
Participant pursuant to a salary reduction agreement under the AFLAC
Incorporated Executive Deferred Compensation Plan.
1.5 ANNUAL RETIREMENT BENEFIT means the annual amount payable to a
retired Participant as determined pursuant to the terms of Article III.
1.6 AVERAGE ANNUAL COMPENSATION means, for each Participant, the
average of his Annual Compensation for the 3-consecutive-calendar year
period in the final 10-consecutive-calendar year period of employment with
the Company and its Affiliates that yields the highest average. For
purposes hereof, the Participant's Annual Compensation for the calendar year
in which the Participant terminates employment with the Company and all of
its Affiliates shall be taken into account only if such termination occurs
as of December 31 of such year.
1.7 BENEFIT COMMENCEMENT DATE means the first day of the calendar
month coinciding with or next following the date on which a Participant
becomes entitled to receive or begin receiving an Annual Retirement Benefit
under Section 3.2, 3.3, 3.4 or 3.5.
1.8 BOARD means the Board of Directors of the Company.
EXH 10.4-2
1.9 CAUSE means, in connection with a Participant's termination of
employment and/or removal from participation in the Plan (whether by action
of his employer or the Compensation Committee, or by the Participant's
resignation for other than Good Reason in anticipation of such action for
Cause to terminate his employment or participation) (i) the continued
failure by the Participant to substantially perform the Participant's duties
with the Company or an Affiliate of the Company (other than any such failure
resulting from the Participant's incapacity due to physical or mental
illness or any such actual or anticipated failure after a Participant gives
a notice of termination of employment for Good Reason) after a written
demand for substantial performance is delivered to the Participant by the
Board, which demand specifically identifies the manner in which the Board
believes that the Participant has not substantially performed the
Participant's duties; (ii) the engaging by the Participant in conduct that
is demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise; or (iii) the Participant's conviction of, or plea
of guilty or no contest to, a felony or crime involving moral turpitude.
Notwithstanding the foregoing, a termination for Cause shall not be deemed
to have occurred under clause (i) or (ii) unless and until there shall have
been delivered to the Participant a copy of a resolution duly adopted by the
affirmative vote of a majority of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after reasonable
notice to the Participant and an opportunity for him, together with his
counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Participant engaged in conduct set forth above and
specifying the particulars thereof in detail.
1.10 CHANGE IN CONTROL means the occurrence of any of the following
events:
(a) Any Person is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding securities;
provided, for purposes of this subsection (a), securities acquired directly
from the Company or its Affiliates shall not be taken into account as
securities beneficially owned by such Person;
(b) During any period of 2 consecutive years, individuals who at
the beginning of such period constitute the Board and any new director
(other than a director designated by a Person who has entered into an
agreement with the Company to effect a transaction described in subsection
(a), (c) or (d) hereof) whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof;
(c) The shareholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (i) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit
plan of the Company, at least 75% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
EXH 10.4-3
after such merger or consolidation; or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person acquires more than 50% of the combined
voting power of the Company's then outstanding securities; or
(d) The shareholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all the Company's assets.
As used herein, the term "Person" shall have the meaning given in
Section 3(a)(9) of the Securities Exchange Act of 1934, as modified and used
in Sections 13(d) and 14(d) thereof; provided, a Person shall not include
(i) the Company or any of its subsidiaries; (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
or any of its subsidiaries; (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities; or (iv) a corporation
owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the
Company.
1.11 CODE means the Internal Revenue Code of 1986, as amended.
1.12 COMPANY means AFLAC Incorporated, a Georgia corporation with its
principal place of business in Columbus, Georgia.
1.13 COMPENSATION COMMITTEE means the Compensation Committee of the
Board.
1.14 CONFIDENTIAL INFORMATION means (i) all Trade Secrets; and (ii)
any other information that is material to the Company and not generally
available to the public, including, without limitation, information
concerning the Company's methods and plans of operation, production
processes, marketing and sales strategies, research and development, know-
how, computer programming, style and design technology and plans, non-
published product specifications, patent applications, product and raw
material costs, pricing strategies, business plans, financial data,
personnel records, suppliers and customers (whether or not such information
constitutes a Trade Secret).
1.15 CONTIGUOUS CONSULTING AGREEMENT means a written consulting
agreement between the Company (and/or an Affiliate) and a Participant that
(i) commences immediately upon the Participant's termination of employment
with the Company and all Affiliates, (ii) obligates the Participant to
perform consulting services for the Company or an Affiliate for a specified
period, and (iii) is approved by the Company's Chief Executive Officer or
the Compensation Committee.
1.16 DELAYED EARLY RETIREMENT DATE means (i) for a Participant whose
Participation Date occurred before August 11, 1992, the date the Participant
attains age 60; and (ii) for a Participant whose Participation Date occurred
on or after August 11, 1992, the latest of (A) the date the Participant
attains age 60, (B) the date the Participant completes 15 Years of
Employment, or (C) the date the Participant completes 5 consecutive Years of
Participation (that is, for a Participant who has continuously been an
active Participant in the Plan since his Participation Date, the 5th
anniversary of such date).
EXH 10.4-4
1.17 DISABILITY OR DISABLED means that a Participant is, in the
opinion of the Compensation Committee, wholly prevented from performing the
duties assigned to such Participant by the Company or Affiliate employing
such Participant, by reason of a medically determinable physical or mental
impairment which can be expected to result in death or to be of long-
continued and indefinite duration. In making such determination, the
Compensation Committee, in its sole discretion, may require such medical
proof as it deems necessary, including the certificate of one or more
licensed physicians selected by the Compensation Committee. The decision of
the Compensation Committee as to Disability shall be final and binding.
1.18 EARLY RETIREMENT DATE means (i) for a Participant whose
Participation Date occurred before August 11, 1992, the date the Participant
attains age 55; and (ii) for a Participant whose Participation Date occurred
on or after August 11, 1992, the latest of (A) the date the Participant
attains age 55, (B) the date the Participant completes 15 Years of
Employment, or (C) the date the Participant completes 5 consecutive Years of
Participation (that is, for a Participant who has continuously been an
active Participant in the Plan since his Participation Date, the 5th
anniversary of such date).
1.19 EFFECTIVE DATE means January 1, 2001, the date as of which this
restatement shall be effective. (The Plan was initially effective on
October 1, 1989 and previously restated effective as January 1, 1998.)
1.20 ELIGIBLE EMPLOYEE means an Employee who is a member of a select
group of highly compensated or key management employees of the Company or an
Affiliate.
1.21 EMPLOYMENT DATE means, with respect to an Eligible Employee, the
date his employment with the Company or an Affiliate first commenced
(whether or not he was an Eligible Employee on such date); provided, if an
individual ceases to be an employee of the Company and all Affiliates for
any reason and subsequently is reemployed by the Company and/or an
Affiliate, his Employment Date shall be the date his employment recommences
(unless the Compensation Committee designates an earlier date).
1.22 ERISA means the Employee Retirement Income Security Act of 1974,
as amended.
1.23 FINAL BASE PAY means the highest annual base salary (excluding
bonuses) paid to a Participant during any of the 3 calendar years
immediately preceding the calendar year in which the Participant terminates
employment with the Company and all of its Affiliates.
1.24 GOOD REASON means the occurrence after a Change in Control of any
of the following circumstances, unless the Participant expressly consents to
such circumstance in writing or, in the case of a circumstance described in
subsection (a), (e) or (f) hereof, such circumstance is fully corrected
prior to the date the Participant terminates employment:
(a) The assignment to the Participant of any duties inconsistent
with the position he held in the Company (or any subsidiary or Affiliate of
the Company) immediately prior to the Change in Control, or a significant
adverse alteration in the nature or status of his responsibilities from
those in effect immediately prior to such change;
EXH 10.4-5
(b) A reduction by the Company and all Affiliates in the
Participant's annual base salary, or a reduction by the Company and all
Affiliates in the Participant's total compensation, as in effect immediately
prior to the Change in Control or as the same may be increased from time to
time;
(c) The relocation of the Company's principal executive offices
to a location outside the Columbus, Georgia Metropolitan Area (or, if
different, the metropolitan area in which such offices are located
immediately prior to the Change in Control); or the Company's requiring the
Participant to be based anywhere other than the Company's principal
executive offices except for required travel on the Company's business to an
extent substantially consistent with the Participant's business travel
obligations immediately prior to the Change in Control;
(d) The failure by the Company and all Affiliates to pay to the
Participant any portion of his current compensation within 7 days of the
date such compensation is due;
(e) The failure by the Company and all Affiliates to continue in
effect any compensation plan in which the Participant participates
immediately prior to the Change in Control and which is material to the
Participant's total compensation, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with respect to
such plan; or the failure by the Company and all Affiliates to continue the
Participant's participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the amount
of benefits provided and the level of the Participant's participation
relative to other participants, as existed at the time of the Change in
Control; or
(f) The failure by the Company and all Affiliates to continue to
provide the Participant with benefits substantially similar to those enjoyed
by him under any of the Company's life insurance, medical, health and
accident, or disability plans in which he was participating at the time of
the Change in Control; the taking of any action by the Company or an
Affiliate which would directly or indirectly materially reduce any of such
benefits or deprive the Participant of any material fringe benefit enjoyed
by him at the time of the Change in Control; or the failure by the Company
and all Affiliates to provide the Participant with the number of paid
vacation days to which he is entitled on the basis of years of service with
the Company and all Affiliates in accordance with the Company's or
Affiliate's normal vacation policy in effect at the time of the Change in
Control.
A Participant's right to terminate his employment for Good Reason shall
not be affected by the Participant's incapacity due to physical or mental
illness. The Participant's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
1.25 GRANDFATHERED PARTICIPANT means a Participant who was an active
Participant in the Plan on December 31, 1997.
1.26 JOINT AND 50% SURVIVOR ANNUITY means the Actuarial Equivalent of
a Participant's Annual Retirement Benefit payable monthly during the
Participant's lifetime (commencing as of his Benefit Commencement Date and
EXH 10.4-6
ending with the payment due as of the first day of the month during which
the Participant dies), with 50% of such monthly benefit amount continuing
after his death (beginning as of the first day of the month following the
month in which he dies) to his Surviving Spouse (if the Surviving Spouse
survives the Participant) for such Surviving Spouse's remaining lifetime.
Payments shall cease after the payment due on the first day of the month
coinciding with or immediately preceding the later of the Participant's
death or his Surviving Spouse's death.
1.27 NORMAL RETIREMENT DATE means (i) for a Participant whose
Participation Date occurred before August 11, 1992, the date the Participant
attains age 65; and (ii) for a Participant whose Participation Date occurred
on or after August 11, 1992, the latest of (A) the date the Participant
attains age 65, (B) the date the Participant completes 15 Years of
Employment, or (C) the date the Participant completes 5 consecutive Years of
Participation (that is, for a Participant who has continuously been an
active Participant in the Plan since his Participation Date, the 5th
anniversary of such date).
1.28 PARTICIPANT means an active Participant or retired Participant
who has a benefit payable under the Plan.
1.29 PARTICIPATION DATE means, with respect to each Eligible Employee
who is designated as a Participant, the date his participation in the Plan
commences (see Section 2.1); provided, if an Eligible Employee ceases to be
an active Participant for any reason and subsequently is again designated as
a Participant, his Participation Date shall be the date his active
participation recommences (unless the Compensation Committee designates an
earlier date).
1.30 PENSION PLAN means the AFLAC Incorporated Pension Plan, a defined
benefit plan qualified under Code Section 401(a), as such plan may be
amended from time to time.
1.31 PENSION PLAN BENEFIT means the Actuarial Equivalent of a
Participant's accrued benefit under the Pension Plan, calculated as if that
benefit was payable annually for the life of the Participant commencing on
the Participant's Benefit Commencement Date.
1.32 PLAN means the AFLAC Incorporated Supplemental Executive
Retirement Plan, as contained herein and all amendments hereto. The Plan is
intended to be an unfunded, nonqualified deferred compensation plan covering
certain designated employees who are within a select group of key management
or highly compensated employees.
1.33 QUALIFYING TERMINATION means a Participant's termination of
employment with the Company and all Affiliates following a Change in
Control, unless such termination of employment is (i) because of the
Participant's death or Disability, (ii) by the Company or an Affiliate for
Cause, or (iii) by the Participant other than for Good Reason.
1.34 SINGLE LIFE ANNUITY means the Actuarial Equivalent of a
Participant's Annual Retirement Benefit payable monthly during the
Participant's lifetime, commencing as of his Benefit Commencement Date and
ending after the payment due on the first day of the month coinciding with
or immediately preceding the date of his death.
EXH 1-.4-7
1.35 SURVIVING SPOUSE means, with respect to a Participant, the person
who is treated as married to such Participant under the laws of the state in
which the Participant resides. The determination of a Participant's
Surviving Spouse shall be made as of the date of such Participant's
termination of employment.
1.36 TOTAL PAYMENTS has the meaning as defined in Section 3.7(e).
1.37 TRADE SECRET means information of or about the Company that would
be considered a trade secret under Georgia law; namely, that information
which (i) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable through proper means
by, other persons who can obtain economic value from its disclosure or use;
and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy. Trade Secrets may include, but shall
not be limited to, technical or nontechnical data, a formula, pattern,
compilation, program, device, method, technique, drawing or process,
financial data or plans, product plans, or a list of actual or potential
customers or suppliers.
1.38 YEAR OF EMPLOYMENT means, with respect to an Eligible Employee, a
12-month period, beginning on his Employment Date or on any anniversary
thereof, during which such Eligible Employee either (i) remains continuously
employed by, or engaged to provide full-time service to, the Company and/or
an Affiliate, or (ii) is subject to the terms of a Contiguous Consulting
Agreement. If an individual ceases to be an employee or consultant of the
Company and all Affiliates for any reason and subsequently is reemployed or
reengaged by the Company and/or an Affiliate, his previously earned Years of
Employment shall be taken into account only to the extent (if any) specified
by the Compensation Committee.
1.39 YEAR OF PARTICIPATION means, with respect to a Participant, a 12-
month period, beginning on his Participation Date or on any anniversary
thereof, during which such Participant continues to actively participate in,
and to thereby accrue benefits under, the Plan. If an individual ceases to
be a Participant for any reason and subsequently is readmitted to
participation in the Plan, his previously earned Years of Participation
shall be taken into account only to the extent (if any) specified by the
Compensation Committee.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 SELECTION OF PARTICIPANTS.
The Compensation Committee, in its sole discretion, shall
designate which Eligible Employees shall become Participants in the Plan
and, for each such Eligible Employee, his Participation Date. The
Administrative Committee then shall set forth the name of each Participant
on Schedule A hereto. Notwithstanding anything herein to the contrary, all
aspects of the selection of Participants shall be in the sole discretion of
the Compensation Committee and regardless of title, duties or any other
factors, there shall be no requirement whatsoever that any individual or
group of individuals be allowed to participate herein.
EXH 10.4-8
2.2 CESSATION OF PARTICIPATION.
Unless the Compensation Committee specifies otherwise, a
Participant's active participation in the Plan shall cease at the time his
employment with the Company and all Affiliates terminates for any reason
(whether or not he enters into a Contiguous Consulting Agreement), such that
he shall not accrue any additional benefit under the Plan. In addition,
subject to Section 3.7(b), the Compensation Committee, in its sole
discretion, may remove any Participant from participation in the Plan due to
Cause. Any such removal shall be effective as of the later of (i) the date
that the Compensation Committee has taken such action, or (ii) the effective
date that the Compensation Committee specifies for such action. A
Participant who remains entitled to benefits under the Plan after he
terminates employment with the Company and its Affiliates shall remain a
retired Participant as long as he is entitled to any portion of his benefits
as described in the Plan. During the period a former employee, who
completed at least 5 Years of Participation while an Eligible Employee, is
subject to the terms of a Contiguous Consulting Agreement, he shall remain
an active Participant potentially eligible pursuant to the terms of Section
3.5; provided, during such period, he shall not accrue any additional
benefit under the Plan nor shall he earn any credits towards a Year of
Participation.
2.3 TERMINATION OF EMPLOYMENT BEFORE EARLY RETIREMENT DATE; REMOVAL
FROM PARTICIPATION.
(a) TERMINATION BEFORE EARLY RETIREMENT DATE. Except as provided
in Section 3.5 or 3.7, upon a Participant's termination of employment with
the Company and all Affiliates before his Early Retirement Date, neither the
Participant nor his Surviving Spouse (if any) shall be entitled to any
benefit or payment under the Plan.
(b) REMOVAL FROM PARTICIPATION. Notwithstanding anything herein
to the contrary, if the Compensation Committee determines, in its sole
discretion, that either (i) a Participant's employment or participation in
the Plan was terminated by the Company, an Affiliate or the Compensation
Committee for Cause, or (ii) the Participant resigned for other than Good
Reason in anticipation of such action for Cause to terminate his employment
or participation, then the Participant and/or his Surviving Spouse shall
forfeit all rights and entitlements under the Plan. The decision of the
Compensation Committee as to whether the Participant's discharge or removal
was for Cause will be final and binding; provided, no dispute over the
reason for such discharge shall affect the finality of the discharge of the
Participant by the Company or Affiliate.
ARTICLE III
BENEFITS
3.1 ELIGIBILITY FOR BENEFITS.
Subject to the terms of Section 2.3, a Participant or Surviving
Spouse shall be eligible to receive the amount, if any, determined in
accordance with the terms of this Article.
EXH 10.4-9
3.2 NORMAL RETIREMENT BENEFIT.
(a) GENERAL FORMULA. Upon a Participant's termination of
employment with the Company and all Affiliates on or after his Normal
Retirement Date for any reason other than Cause or death, the Participant
shall be entitled to an Annual Retirement Benefit in an amount equal to the
difference between the amount determined under subsection (a)(i) and the
amount determined under subsection (a)(ii), as follows:
(i) 60% of the Participant's Average Annual Compensation;
and
(ii) the Participant's Pension Plan Benefit.
(b) GRANDFATHERED BENEFITS. Notwithstanding the terms of
subsection (a) hereof, the Annual Retirement Benefit of any Grandfathered
Participant who terminates employment on or after his Normal Retirement Date
for any reason other than Cause or death shall be the greater of the amount
determined under subsection (a) hereof or an amount equal to the difference
between the amount determined under subsection (b)(i) and the amount
determined under subsection (b)(ii), as follows:
(i) 65% of the Participant's Final Base Pay; and
(ii) the Participant's Pension Plan Benefit.
3.3 DELAYED EARLY RETIREMENT BENEFIT.
(a) GENERAL FORMULA. Upon a Participant's termination of
employment with the Company and all Affiliates on or after his Delayed Early
Retirement Date but before his Normal Retirement Date for any reason other
than Cause or death, the Participant shall be entitled to an Annual
Retirement Benefit in an amount equal to the difference between the amount
determined under subsection (a)(i) and the amount determined under
subsection (a)(ii), as follows:
(i) 50% of the Participant's Average Annual Compensation;
and
(ii) the Participant's Pension Plan Benefit.
(b) GRANDFATHERED BENEFITS. Notwithstanding the terms of
subsection (a), the Annual Retirement Benefit of any Grandfathered
Participant who terminates employment on or after his Delayed Early
Retirement Date but before his Normal Retirement Date for any reason other
than Cause or death shall be the greater of the amount determined under
subsection (a) hereof or an amount equal to the difference between the
amount determined under subsection (b)(i) and the amount determined under
subsection (b)(ii), as follows:
(i) 50% of the Participant's Final Base Pay; and
(ii) the Participant's Pension Plan Benefit.
EXH 10.4-10
3.4 EARLY RETIREMENT BENEFIT.
(a) GENERAL FORMULA. Upon a Participant's termination of
employment with the Company and all Affiliates on or after his Early
Retirement Date but before his Delayed Early Retirement Date for any reason
other than Cause or death, the Participant shall be entitled to an Annual
Retirement Benefit in an amount equal to the difference between the amount
determined under subsection (a)(i) and the amount determined under
subsection (a)(ii), as follows:
(i) 40% of the Participant's Average Annual Compensation;
and
(ii) the Participant's Pension Plan Benefit.
(b) GRANDFATHERED BENEFITS. Notwithstanding the terms of
subsection (a), the Annual Retirement Benefit of any Grandfathered
Participant who terminates employment on or after his Early Retirement Date
but before his Delayed Early Retirement Date for any reason other than Cause
or death shall be the greater of the amount determined under subsection (a)
hereof or an amount equal to the difference between the amount determined
under subsection (b)(i) and the amount determined under subsection (b)(ii),
as follows:
(i) 50% of the Participant's Final Base Pay; and
(ii) the Participant's Pension Plan Benefit.
3.5 REDUCED EARLY RETIREMENT BENEFIT.
Upon a Participant's attainment of his Early Retirement Date after
his termination of employment but while he is subject to the terms of a
Contiguous Consulting Agreement, the Participant shall be entitled to an
Annual Retirement Benefit that is the product of (i) the Annual Retirement
Benefit to which the Participant would have been entitled had he remained
actively employed by the Company or an Affiliate as a Participant until his
Early Retirement Date, and (ii) a fraction, (A) the numerator of which is
the number of complete and partial 12-month periods of employment with the
Company and its Affiliates completed by the Participant as of the date of
his termination of employment, and (B) the denominator of which is the
number of complete and partial 12-month periods between the Participant's
first day of employment with the Company and its Affiliates and the
Participant's Early Retirement Date.
3.6 PAYMENT OF ANNUAL RETIREMENT BENEFIT.
(a) COMMENCEMENT. A Participant's Annual Retirement Benefit
shall commence as soon as practicable after the Participant's Benefit
Commencement Date.
(b) NORMAL FORM OF PAYMENT. Except as provided in subsection (c)
hereof, a Participant's Annual Retirement Benefit shall be paid in the form
of a Single Life Annuity, commencing on the Participant's Benefit
Commencement Date.
(c) OPTIONAL FORM OF PAYMENT. A Participant may elect, not later
than 6 months before his termination of employment with the Company and all
EXH 10.4-11
Affiliates, to have his Annual Retirement Benefit paid in the form of a
Joint and 50% Survivor Annuity, which shall be the Actuarial Equivalent of
the Participant's Annual Retirement Benefit payable in the form of a Single
Life Annuity. Notwithstanding any such election, if a Participant who has
elected a Joint and 50% Survivor Annuity is not married on the date of his
termination of employment, his benefit shall be paid in the form of a Single
Life Annuity.
(d) CASH PAYMENTS. All benefit payments hereunder shall be made
in cash.
3.7 CHANGE IN CONTROL.
(a) GENERAL. In the event of a Change in Control, the provisions
of this Section shall apply to each Participant who was an active
Participant in the Plan immediately preceding the date of the Change in
Control.
(b) RESTRICTION ON CHANGES. For a period of 3 years following a
Change in Control, (i) no Participant may be removed from participation in
the Plan pursuant to the terms of Section 2.2, and (ii) the Plan may not be
terminated or amended in any manner which would adversely affect in any way
the amount of, or the entitlement to, retirement benefits hereunder or
remove a Participant from participation hereunder. Notwithstanding any
other provisions of the Plan, the foregoing provisions of this subsection
may not be amended following a Change in Control without the written consent
of a majority in both number and interest of the Participants who are
actively employed by the Company or any Affiliate, both immediately prior to
the Change in Control and at the date of such amendment.
(c) TERMINATION WITHIN TWO YEARS OF A CHANGE IN CONTROL. If a
Participant's employment with the Company and all Affiliates terminates
during the 2-year period immediately following the Change in Control and
such termination of employment constitutes a Qualifying Termination, the
Company shall pay to the Participant, no later than the fifth day following
the date of the Participant's Qualifying Termination, a lump-sum cash amount
that is the Actuarial Equivalent (determined as of the date of the
Qualifying Termination) of the Annual Retirement Benefit to which the
Participant would have been entitled had he remained in the employ of the
Company or an Affiliate as a Participant in the Plan (i) until he attained
his Early Retirement Date, in the case of a Participant who had not yet
attained his Early Retirement Date as of the date of his Qualifying
Termination, (ii) until he had attained his Delayed Early Retirement Date,
in the case of a Participant who had attained his Early Retirement Date but
not his Delayed Early Retirement Date as of the date of the Qualifying
Termination, or (iii) until he had attained his Normal Retirement Date, for
a participant who had attained his Delayed Early Retirement Date but not his
Normal Retirement Date as of the date of the Qualifying Termination.
(d) TERMINATION OR REMOVAL MORE THAN TWO YEARS AFTER A CHANGE IN
CONTROL. If after the 2-year period immediately following a Change in
Control and before a Participant's Early Retirement Date (i) the
Participant's employment with the Company and all Affiliates terminates and
such termination constitutes a Qualifying Termination, or (ii) the
Participant is removed from participation in the Plan (pursuant to the terms
of Section 2.2 but subject to the terms of subsection (b) hereof), the
Company shall pay to the Participant, no later than the fifth day following
EXH 10.4-12
the date of the Participant's Qualifying Termination or removal from the
Plan, a lump-sum cash amount that is the Actuarial Equivalent (determined as
of the date of the Qualifying Termination or removal) of the product of (i)
the Annual Retirement Benefit to which the Participant would have been
entitled had he remained in the employ of the Company or an Affiliate as a
Participant in the Plan until his Early Retirement Date, and (ii) a
fraction, (A) the numerator of which is the number of complete and partial
12-month periods of employment with the Company and its Affiliates completed
by the Participant as of the date of the Qualifying Termination or removal
from participation, and (B) the denominator of which is the number of
complete and partial 12-month periods between the Participant's first day of
employment with the Company and its Affiliates and the Participant's Early
Retirement Date.
(e) LIMITATIONS ON PAYMENTS. Notwithstanding any other
provisions of the Plan, in the event that any payment or benefit received or
to be received by a Participant in connection with a Change in Control or
the termination of the Participant's employment, whether pursuant to the
terms of the Plan or any other plan, arrangement or agreement with the
Company or entity whose actions result in a Change in Control or any
affiliate of the Company or such entity (all such payments and benefits,
including the payments under this Section 3.7, being hereinafter called
"Total Payments") would not be deductible (in whole or part) by the Company,
an affiliate or entity making such payment or providing such benefit, as a
result of Code Section 280G, then, to the extent necessary to make such
portion of the Total Payments deductible (and after taking into account any
reduction in the Total Payments made on account of Code Section 280G in such
other plan, arrangement or agreement), the payment described in this Section
shall be reduced (if necessary, to zero). For purposes of this limitation
(i) no portion of the Total Payments shall be taken into account which in
the opinion of tax counsel selected by the Company's independent auditors
and reasonably acceptable to the Participant does not constitute a
"parachute payment" within the meaning of Code Section 280G(b)(2), including
by reason of Code Section 280G(b)(4)(A); (ii) the payment under this Section
shall be reduced only to the extent necessary so that the Total Payments are
not subject to disallowance as deductions, in the opinion of the tax counsel
referred to in clause (i); and (iii) the value of any non-cash benefit or
any deferred payment or benefit included in the Total Payments shall be
determined by the Company's independent auditors in accordance with the
principles of Code Sections 280G(d)(3) and (4).
3.8 NONCOMPETITION.
The payment of Annual Retirement Benefits to a Participant under
the Plan shall immediately cease and be forfeited if the Participant,
without the prior consent of the Board, directly or indirectly renders
advisory or any other services to, or becomes employed by, or participates
or engages in any business competitive with any of the business activities
of the Company (or any subsidiary or Affiliate of the Company) in any states
or foreign countries in which the Company or any of its subsidiaries or
Affiliates do business. For purposes of this Section, "participates or
engages" in means acting as an agent, consultant, representative, officer,
director, member, independent contractor or employee; or as an owner,
partner, limited partner, joint venturer, creditor or shareholder (except as
a shareholder holding no more than a 1% interest in a publicly traded
entity). As a condition to receiving or continuing to receive benefit
payments hereunder, the Compensation Committee, in its sole discretion and
EXH 10.4-13
at any time, may require any Participant to enter into a noncompete and/or
nonsolicitation agreement with such terms and provisions as the Compensation
Committee may dictate.
3.9 CONFIDENTIAL INFORMATION.
The payment of an Annual Retirement Benefit to a Participant under
the Plan shall immediately cease and be forfeited if the Participant, at any
time during or following the Participant's employment with the Company or
its Affiliates, discloses any Confidential Information to any other person
or entity (except employees of the Company and its Affiliates) without the
prior written consent of the Board or Compensation Committee.
3.10 DEATH BENEFIT.
In the event a Participant dies after attaining his Early
Retirement Date but before his Benefit Commencement Date, his Surviving
Spouse (if any) shall be entitled to receive, commencing as of the first day
of the month coinciding with or immediately following the date of the
Participant's death, an annual survivor benefit in an amount determined as
if the Participant had retired on the day immediately preceding his death
and had elected to receive a Joint and 50% Survivor Annuity.
ARTICLE IV
CLAIMS
4.1 CLAIMS.
(a) INITIAL CLAIM. Claims for benefits under the Plan may be
filed in writing with the Compensation Committee. The Compensation
Committee shall furnish to the claimant written notice of the disposition of
a claim within 90 days after the application therefor is filed; provided, if
special circumstances require an extension, the Compensation Committee may
extend such 90-day period by up to an additional 90 days, by providing a
notice of such extension to the claimant before the end of the initial 90-
day period. In the event the claim is denied, the notice of the disposition
of the claim shall provide the specific reasons for the denial, citations of
the pertinent provisions of the Plan, and, where appropriate, an explanation
as to how the claimant can perfect the claim and/or submit the claim for
review.
(b) APPEAL. Any Participant or Surviving Spouse who has been
denied a benefit shall be entitled, upon request to the Compensation
Committee, to appeal the denial of his claim. The claimant (or his duly
authorized representative) may review pertinent documents related to the
Plan and in the Compensation Committee's possession in order to prepare the
appeal. The request for review, together with a written statement of the
claimant's position, must be filed with the Compensation Committee no later
than 60 days after receipt of the written notification of denial of a claim
provided for in subsection (a). The Compensation Committee's decision shall
be made within 60 days following the filing of the request for review;
provided, if special circumstances require an extension, the Compensation
Committee may extend such 60-day period by up to an additional 60 days, by
providing a notice of such extension to the claimant before the end of the
EXH 10.4-14
initial 60-day period. If unfavorable, the notice of decision shall explain
the reasons for denial and indicate the provisions of the Plan or other
documents used to arrive at the decision.
(c) SATISFACTION OF CLAIMS. Any payment to a Participant or
Surviving Spouse shall to the extent thereof be in full satisfaction of all
claims hereunder against the Compensation Committee, the Company, and all
Affiliates, any of which may require such Participant or Surviving Spouse as
a condition to such payment to execute a receipt and release therefor in
such form as shall be determined by the Compensation Committee. If receipt
and release is required but the Participant or Surviving Spouse (as
applicable) does not provide such receipt and release in a timely enough
manner to permit a timely distribution in accordance with the general timing
of distribution provisions in the Plan, the payment of any affected
distribution(s) may be delayed until the Compensation Committee receives a
proper receipt and release.
ARTICLE V
SOURCE OF FUNDS
5.1 SOURCE OF FUNDS.
(a) ALLOCATION AMONG AFFILIATES. The obligation to pay benefits
hereunder shall be the obligation of the Company and its Affiliates that
participate in the Plan and whose employees are Participants entitled to
benefits hereunder. The Compensation Committee shall allocate the total
liability to pay benefits under the Plan among the Company and its
Affiliates that participate in the Plan in such manner and amount as the
Compensation Committee in its sole discretion deems appropriate.
(b) GENERAL CREDITORS. Each of the Company and its Affiliates
shall provide the benefits described in the Plan and allocable to such
entity pursuant to the terms of subsection (a) hereof from its general
assets. The Company's and Affiliates' obligations to pay benefits under the
Plan constitute mere promises of the Company and its Affiliates to pay such
benefits; and a Participant or Surviving Spouse shall be and remain no more
than an unsecured, general creditor of the Company.
ARTICLE VI
ADMINISTRATIVE AND COMPENSATION COMMITTEES
6.1 ACTION OF ADMINISTRATIVE COMMITTEE.
Action of the Administrative Committee may be taken with or
without a meeting of committee members; provided, action shall be taken only
upon the vote or other affirmative expression of a majority of the committee
members qualified to vote with respect to such action. If a member of the
committee is a Participant or Surviving Spouse, he shall not participate in
any decision which solely affects his own benefit under the Plan. For
purposes of administering the Plan, the Administrative Committee shall
choose a secretary who shall keep minutes of the committee's proceedings and
all records and documents pertaining to the administration of the Plan. The
secretary may execute any certificate or any other written direction on
behalf of the Administrative Committee.
EXH 10.4-15
6.2 RIGHTS AND DUTIES OF ADMINISTRATIVE COMMITTEE.
The Administrative Committee shall administer the Plan and shall
have all powers necessary to accomplish that purpose, including (but not
limited to) the following:
(a) To maintain all the necessary records of the administration
of the Plan;
(b) To maintain records regarding Participants' and Surviving
Spouses' benefits hereunder;
(c) To effect all disbursements approved by the Compensation
Committee pursuant to the Plan;
(d) To delegate to other individuals or entities from time to
time the performance of any of its duties or responsibilities hereunder; and
(e) To hire agents, accountants, actuaries, consultants and legal
counsel to assist in operating and administering the Plan.
6.3 RIGHTS AND DUTIES OF COMPENSATION COMMITTEE.
The Compensation Committee shall have the exclusive right to
construe and to interpret the Plan, to decide all questions of eligibility
for benefits and to determine the amount of such benefits, and its decisions
on such matters shall be final and conclusive on all parties. The
Compensation Committee may establish rules for the regulation of the Plan as
are not inconsistent with the terms hereof.
6.4 COMPENSATION, INDEMNITY AND LIABILITY.
The Compensation Committee, the Administrative Committee and their
members shall serve as such without bond and without compensation for
services hereunder. All expenses of the Compensation Committee and the
Administrative Committee shall be paid by the Company. No member of either
committee shall be liable for any act or omission of any other member of the
committee, nor for any act or omission on his own part, excepting his own
willful misconduct. The Company shall indemnify and hold harmless the
Compensation Committee, the Administrative Committee and each member thereof
against any and all expenses and liabilities, including reasonable legal
fees and expenses, arising out of his membership on the committee, excepting
only expenses and liabilities arising out of his own willful misconduct.
6.5 TAXES.
If the whole or any part of any Participant's or Surviving
Spouse's benefit hereunder shall become subject to any estate, inheritance,
income or other tax which the Company or an Affiliate shall be required to
pay or withhold, the Company and such Affiliate shall have the full power
and authority to withhold and pay such tax out of any monies or other
property in its hand for the account of the Participant or Surviving Spouse
whose interests hereunder are so affected. Prior to making any payment, the
Company and Affiliates may require such releases or other documents from any
lawful taxing authority as they shall deem necessary.
EXH 10.4-16
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 AMENDMENTS.
Subject to Section 3.7(b), the Board or the Compensation Committee
may amend the Plan in whole or in part at any time and from time to time.
An amendment to the Plan may modify its terms in any respect whatsoever;
provided, the Board may not amend the Plan to decrease the level of benefits
which a Participant or Surviving Spouse would be entitled to receive under
Article III, if he terminated employment with the Company and all Affiliates
on the later of (i) the date such amendment is adopted, or (ii) the date
such amendment is effective.
7.2 TERMINATION OF PLAN.
Subject to Section 3.7(b), the Board shall have the right to
discontinue and terminate the Plan at any time, for any reason; provided,
such discontinuance or termination shall not have the effect of decreasing
the level of benefits which a Participant would be entitled to receive under
Article III, if he terminated employment with the Company and all Affiliates
on the later of (i) the date the resolution to terminate and discontinue the
Plan is adopted, or (ii) the date the termination and discontinuance is
effective. Termination and discontinuance of the Plan shall be binding on
all Participants and Surviving Spouses.
ARTICLE VIII
MISCELLANEOUS
8.1 TAXATION.
It is the intention of the Company and Affiliates that the
benefits payable hereunder shall not be deductible by the Company or
Affiliates nor taxable for federal income tax purposes to Participants or
Surviving Spouses until such benefits are paid by the Company or Affiliates
to such Participants or Surviving Spouses. When such benefits are so paid,
it is the intention of the Company and Affiliates that they shall be
deductible by the Company and Affiliates under Code Section 162.
8.2 NO EMPLOYMENT CONTRACT.
Nothing herein contained is intended to be nor shall be construed
as constituting a contract arrangement between the Company or any Affiliate
and any Participant to the effect that the Participant will be employed or
engaged as a consultant by the Company or any Affiliate for any specific
period of time.
8.3 HEADINGS.
The headings of the various articles and sections in the Plan are
solely for convenience and shall not be relied upon in construing any
provisions hereof. Any reference to a section shall refer to a section of
the Plan unless specified otherwise.
EXH 10.4-17
8.4 GENDER AND NUMBER.
Use of any gender in the Plan will be deemed to include all
genders when appropriate, and use of the singular number will be deemed to
include the plural when appropriate, and vice versa in each instance.
8.5 SUCCESSORS.
The Company and the Affiliates shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company and/or the Affiliates to expressly assume their obligations
hereunder in the same manner and to the same extent that the Company and the
Affiliates would be required to perform if no such succession had taken
place.
8.6 LEGAL EXPENSES.
The Company shall pay or reimburse a Participant for all fees and
disbursements of counsel, if any, incurred by the Participant in seeking to
obtain or enforce any right or benefit provided by the Plan.
8.7 ASSIGNMENT OF BENEFITS.
The right of a Participant or any other person to receive payments
under the Plan shall not be assigned, transferred, pledged or encumbered,
except by will or by the laws of descent and distribution and then only to
the extent permitted under the terms of the Plan.
8.8 LEGALLY INCOMPETENT.
The Administrative Committee, in its sole discretion, may direct
that payment be made to an incompetent or disabled person, whether because
of minority or mental or physical disability, to the guardian of such person
or to the person having custody of such person, without further liability
either on the part of the Company or the Affiliates for the amount of such
payment to the person on whose account such payment is made.
8.9 GOVERNING LAW.
The Plan shall be construed, administered and governed in all
respects in accordance with applicable federal law and, to the extent not
preempted by federal law, in accordance with the laws of the State of
Georgia. If any provisions of this instrument shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
IN WITNESS WHEREOF, the Company has caused the Plan to be executed by
its duly authorized officer as of the day and year first above written.
AFLAC INCORPORATED
By: /s/ Joey M. Loudermilk
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Title: Corporate Secretary
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EXH 10.4-18