EXHIBIT 10.37
GREAT WESTERN
RETIREMENT RESTORATION PLAN
THIS AGREEMENT, made and entered into effective the 1st day of January,
1994, by GREAT WESTERN FINANCIAL CORPORATION, a Delaware corporation ("Great
Western"), evidences the terms of a Retirement Restoration Plan for qualified
executives of Great Western and Subsidiaries.
W I T N E S S E T H
ARTICLE I
TITLE, PURPOSE AND DEFINITIONS
1.1 - Title.
This plan shall be known as the "Great Western Retirement Restoration
Plan."
1.2 - Purpose.
The purpose of this Plan is to supplement retirement benefits payable
to certain participants in the Great Western Retirement Plan and to
compensate for Great Western Retirement Plan benefits which are reduced by
virtue of Section 401(a)(17) of the Internal Revenue Code of 1986. No
payment shall be made under this Plan which duplicates a benefit payable
under any other deferred compensation plan or employment agreement provided
by the Company or a Subsidiary. This Plan is adopted effective January 1,
1994.
1.3 - Definitions.
Unless defined herein, any word, phrase or term used in this Plan with
initial capitals shall have the meaning given therefor in the Great Western
Retirement Plan ("Retirement Plan").
"Average Monthly Compensation" means Average Monthly Compensation as
defined in the Retirement Plan.
"Committee" means the Finance Committee of the Board of Directors.
"Company" means Great Western Financial Corporation or any successor
corporation resulting from a merger, consolidation, or transfer of assets
substantially as a whole.
"Eligible Employee" means each individual who meets each of the
following requirements: (1) he or she is an officer who is a first vice
president or above of the Company or Great Western Bank, a Federal Savings
Bank and each officer of the Company's other Subsidiaries of equivalent rank
designated by the Committee; (2) he or she is a participant in the Retirement
Plan and (3) his or her Average Monthly Compensation would be reduced by the
application of Section 401(a)(17) of the Code and (4) he or she does not
participate in the Company Supplemental Executive Retirement Plan.
"Participant" means any Eligible Employee who is eligible for
participation in this Plan as specified in Section 2.1.
"Plan" means the Great Western Retirement Restoration Plan of Great
Western Financial Corporation as set forth in this Agreement and all
subsequent amendments hereto.
"Plan Compensation" means Average Monthly Compensation modified by
ignoring the limitations on compensation under Section 401(a)(17) of the
Code.
"Plan Year" means the calendar year.
"Retirement Plan" means the Great Western Retirement Plan.
"Subsidiary" means any domestic corporation more than 50% of the voting
shares of which, directly or indirectly, are now owned or shall hereafter be
acquired by the Company.
ARTICLE II
PARTICIPATION
2.1 - Eligibility Requirements.
Any Employee who is an Eligible Employee shall become a Participant on
the date he or she becomes vested under the Retirement Plan.
ARTICLE III
PAYMENT OF BENEFITS
3.1 - Payment.
There shall be no funding of any benefit which may become payable
hereunder. The Company may, but is not obligated to, invest in any assets
or in life insurance policies which it deems desirable to provide assets for
payments under this Plan but all such assets or life insurance policies shall
remain the general assets of the Company. In connection with any such
investments and as a condition of further participation in this Plan,
Participants shall execute any documentation reasonably requested by the
Company.
ARTICLE IV
RETIREMENT BENEFITS
4.1 - Retirement Benefit.
Subject to Section 4.3, the Participant's retirement benefit under this
Plan shall equal the excess of A over B where:
A equals the Participant's vested retirement benefit under the
Retirement Plan, payable in the form of a single life annuity, calculated by
substituting the Participant's Plan Compensation for his or her Average
Monthly Compensation, and
B equals the vested retirement benefit actually payable under the
Retirement Plan, payable in the form of a single life annuity.
Such benefits shall be calculated as of the earliest date the
Participant could elect to retire under the Retirement Plan (but not earlier
than his termination of employment). Notwithstanding the above, such benefit
shall be reduced to the extent that it, together with the benefits payable
from the Retirement Plan, exceeds the limits of Section 415 of the Code.
4.2 - Benefit Limitation.
Notwithstanding any other provisions of the Plan, in the event that any
benefit provided under this agreement would, in the opinion of counsel for
the Company, not be deemed to be deductible in whole or in part in the
calculation of the federal income tax of the Company by reason of Section
280G of the Internal Revenue Code of 1986 (the "Code"), the aggregate
benefits provided hereunder shall be reduced so that no portion of any amount
which is paid to the Participant or Beneficiary is not deductible for tax
purposes by reason of Section 280G of the Code.
4.3 - Payment of Retirement Benefits.
Upon a Participant's retirement, the Company shall commence to pay to
such retired Participant (or spouse, as applicable) the monthly retirement
benefit to which he is entitled under this Plan commencing on the earliest
date he could elect to have benefits commence under the Retirement Plan (but
not earlier than his termination of employment), and payable in the normal
form benefits are payable with respect to the Participant under Section 4.7
of the Retirement Plan. If the normal form of benefits is the qualified
joint and survivor annuity, the amount payable pursuant to this Plan shall
be the Actuarial Equivalent of the amount set forth in Section 4.1 of this
Plan. No benefits shall be payable under this Plan while the Participant is
accruing benefits under the Retirement Plan.
4.4 - Optional Retirement Benefits.
(a) If the Participant is entitled to elect an optional form of
benefits under the Retirement Plan, the benefits determined under
this Plan may also be paid, at the election of the Participant,
with the consent of the spouse, if applicable, in one of the
alternative forms provided in the Retirement Plan. If such an
election is made, the retirement benefits hereunder shall be the
Actuarial Equivalent of the benefit payable under Section 4.1 of
this Plan. The Committee may impose any requirements with
respect to the consent required for an election of a married
Participant.
(b) To the extent the Retirement Plan allows a participant to defer
payment of his benefits, Participants hereunder may also defer
payments of their benefits (but not after age 65 unless the
employee has not had a termination of employment).
(c) Notwithstanding the foregoing, no election to receive benefits in
an alternative form or to defer benefits shall be valid unless
made at least one year prior to the Participant's termination of
employment. If either of the foregoing elections is made, the
Participant must specify the relevant payment form and/or the
specific deferred commencement date.
4.5 - Small Benefit.
Notwithstanding any other provision or provisions of this Plan to the
contrary, if any benefit hereunder is for an amount of less than fifty
dollars per month, such benefit shall instead be paid in a lump sum which is
the Actuarial Equivalent of such monthly benefit.
4.6 - Forfeiture of Benefits.
Notwithstanding any provision of this Plan to the contrary, no benefits
shall be payable under this Plan with respect to any Participant if the
Participant confesses to, or is convicted of, any act of fraud, theft or
dishonesty arising in the course of, or in connection with, his employment
with the Company or any Subsidiary.
4.7 - Spouse Death Benefit.
If a Participant's spouse is entitled to a death benefit under Section
4.10 of the Retirement Plan, the monthly benefit, if any, payable upon the
death of a Participant to the Participant's spouse, commencing upon the date
that monthly benefits to such spouse commence under Section 4.10 of the
Retirement Plan and payable for the period such benefit is payable under the
Retirement Plan, shall be equal to the excess, if any, of:
(a) The monthly death benefit determined in accordance with Section
4.10 of the Retirement Plan, calculated by substituting the
Participant's Plan Compensation for his or her Average Monthly
Compensation,
over
(b) The amount of the monthly spouse death benefit payable to the
Participant's spouse pursuant to Section 4.10 of the Retirement
Plan.
No benefits under this Section 4.7 shall be duplicative of any
benefits payable pursuant to any other provisions of this Article
IV.
ARTICLE V
COMMITTEE
5.1 - Committee.
This Plan shall be administered by the Committee. The Committee shall
have the authority to make, amend, interpret, and enforce all appropriate
rules and regulations for the administration of this Plan. The Committee
shall have full discretion to construe and interpret the terms and provisions
of this Plan, which interpretation or construction shall be final and binding
on all parties, except as otherwise provided by law. The Committee members
may be Participants under this Plan.
5.2 - Agents.
The Committee may, from time to time, employ other agents and delegate
to them such administrative duties as it sees fit, and may from time to time
consult with counsel who may be counsel to the Company.
5.3 - Binding Effect of Decisions.
The decision or action of the Committee in respect of any questions
arising out of or in connection with the administration, interpretation and
application of the Plan and the rules and regulations promulgated hereunder
shall be final and conclusive and binding upon all persons having any
interest in the Plan.
5.4 - Indemnity.
To the extent permitted by applicable state law the Company shall
indemnify and save harmless the Board of Directors, the Committee and each
member thereof, and any agent or delegate appointed pursuant to Section 5.2,
against any and all expenses, liabilities and claims, including legal fees
to defend against such liabilities and claims, arising out of their discharge
in good faith and responsibilities under or incident to the Plan, excepting
only expenses and liabilities arising out of willful misconduct or gross
negligence. This indemnity shall not preclude such further indemnities as
may be available under insurance purchased by the Company or provided by the
Company under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, as such indemnities are permitted under state law.
ARTICLE VI
AMENDMENT AND TERMINATION
6.1 - Amendments and Termination.
The Company shall have the right to amend this Plan from time to time
by resolution of the Board of Directors and to amend or cancel any
amendments. Such amendment shall be stated in an instrument in writing,
executed by the Company in the same manner as this Plan. The Company also
reserves the right to terminate this Plan at any time.
6.2 - Protection of Accrued Benefits.
This Plan is strictly a voluntary undertaking on the part of the
Company and shall not be deemed to constitute a contract between the Company
and any Eligible Employee (or any other employee) or a consideration for, or
an inducement or condition of employment for the performance of services by
any Eligible Employee or employee. Although the Company reserves the right
to amend or terminate this Plan at any time and, subject at all times to the
provisions of Section 4.3, no such amendment or termination shall result in
the forfeiture of benefits accrued pursuant to this Plan as of the date of
termination.
ARTICLE VII
MISCELLANEOUS
7.1 - Unfunded Plan.
This Plan is intended to be an unfunded plan maintained primarily to
provide deferred compensation benefits for a select group of "management or
highly compensated employees" within the meaning of Section 201, 301 and 401
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and therefore to be exempt from the provisions of Parts 2, 3 and 4 of Title
I of ERISA.
7.2 - Unsecured General Creditor.
In the event of Company's insolvency, Participants and their
Beneficiaries, heirs, successors and assigns shall have no legal or equitable
rights, interest or claims in any property or assets of Company, nor shall
they be Beneficiaries of, or have any rights, claims or interest in any life
insurance policies, annuity contracts or the proceeds therefrom owned or
which may be acquired by Company. In that event, any and all of Company's
assets and policies shall be, and remain, unrestricted by the provisions of
this Plan. Company's obligation under the Plan shall be that of an unfunded
and unsecured promise of Company to pay money in the future.
7.3 - Trust Fund.
The Company shall be responsible for the payment of all benefits
provided under the Plan. At its discretion, the Company may establish one
or more trusts, with such trustees as the Board may approve, for the purpose
of providing for the payment of such benefits. Such trust or trusts may be
irrevocable, but the assets thereof shall be subject to the claims of the
Company's creditors. To the extent any benefits provided under the Plan are
actually paid from any such trust, the Company shall have no further
obligation with respect thereto, but to the extent not so paid, such benefits
shall remain the obligation of, and shall be paid by, the Company.
7.4 - Nonassignability.
None of the benefits, payments, proceeds or claims of any Participant
or Beneficiary shall be subject to any claim of any creditor and, in
particular, the same shall not be subject to attachment or garnishment or
other legal process by any creditor, nor shall any Participant, Beneficiary
or Contingent Annuitant have any right to alienate, anticipate, commute,
pledge, encumber or assign any of the benefits or payments or proceeds which
he may expect to receive, contingently or otherwise, under this agreement.
7.5 - Limitation on Participants' Rights.
Participation in this Plan shall not give any Eligible Employee the
right to be retained in the Company's employ or any right or interest in the
Plan other than as herein provided. The Company reserves the right to
dismiss any Eligible Employee without any liability for any claim against the
Company, except to the extent provided herein.
7.6 - Participants Bound.
Any action with respect to this Plan taken by the Committee or by the
Company, or any action authorized by or taken at the direction of the
Committee or the Company, shall be conclusive upon all Participants,
Beneficiaries and Contingent Annuitants entitled to benefits under the Plan.
7.7 - Receipt and Release.
Any payment to any Participant or Beneficiary in accordance with the
provisions of this Plan shall, to the extent thereof, be in full satisfaction
of all claims against the Company and Subsidiaries and the Committee, and the
Committee may require such Participant, Beneficiary or Contingent Annuitant,
as a condition precedent to such payment, to execute a receipt and release
to such effect. If any Participant, Beneficiary or Contingent Annuitant is
determined by the Committee to be incompetent by reason of physical or mental
disability (including minority) to give a valid receipt and release, the
Committee may cause the payment or payments becoming due to such person to
be made to another person for his benefit without responsibility on the part
of the Committee or the Company to follow the application of such funds.
7.8 - California Law Governs.
This Plan shall be construed, administered, and governed in all
respects under and by the laws of the State of California. If any provision
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective.
7.9 - Headings and Subheadings.
Headings and subheadings in this agreement are inserted for convenience
of records only and are not to be considered in the construction of the
provisions hereof.
7.10 - Instrument in Counterparts.
This agreement has been executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one
and the same instrument, which may be sufficiently evidenced by one
counterpart.
7.11 - Gender.
The masculine gender as used herein includes the feminine and neuter
genders.
7.12 - Successors and Assigns.
This agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns.
IN WITNESS WHEREOF, the Company has caused these presents to be
executed by its duly authorized officers and the corporate seal to be
hereunto affixed this ____ day of ________________, 1994.
GREAT WESTERN FINANCIAL CORPORATION
By ________________________________
By ________________________________
GREAT WESTERN
RETIREMENT RESTORATION PLAN
TABLE OF CONTENTS
Page
ARTICLE I TITLE, PURPOSE AND DEFINITIONS 1
1.1 Title 1
1.2 Purpose 1
1.3 Definitions 2
ARTICLE II PARTICIPATION 4
2.1 Eligibility Requirements 4
ARTICLE III PAYMENT OF BENEFITS 4
3.1 Payment 4
ARTICLE IV RETIREMENT BENEFIT 5
4.1 Retirement Benefit 5
4.2 Benefit Limitation6
4.3 Payment of Retirement Benefits 6
4.4 Optional Retirement Benefits 7
4.5 Small Benefit8
4.6 Forfeiture of Benefits 8
4.7 Spouse Death Benefit 8
ARTICLE V COMMITTEE 9
5.1 Committee 9
5.2 Agents 10
5.3 Binding Effect of Decisions. 10
5.4 Indemnity 10
ARTICLE VI AMENDMENT AND TERMINATION 11
6.1 Amendments and Termination 11
6.2 Protection of Accrued Benefits 12
ARTICLE VII MISCELLANEOUS 12
7.1 Unfunded Plan 12
7.2 Unsecured General Creditor 13
7.3 Trust Fund 13
7.4 Nonassignability 14
7.5 Limitation on Participants' Rights 14
7.6 Participants Bound 14
7.7 Receipt and Release 15
7.8 California Law Governs 15
7.9 Headings and Subheadings 16
7.10 Instrument in Counterparts 16
7.11 Gender 16
7.12 Successors and Assigns 16