EXHIBIT 10.3
GREAT WESTERN
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(1988 RESTATEMENT)
THIS AGREEMENT, made and entered into effective the 1st day of
January, 1988, by GREAT WESTERN FINANCIAL CORPORATION, a Delaware
corporation ("Great Western"), evidences the terms of a Supplemental
Retirement Plan continuing the plan originally effective on January 1, 1987
for qualified executives of Great Western and Subsidiaries and superseding
all arrangements with respect to supplemental retirement benefits previously
entered into between Great Western and Anthony C. La Scala.
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 Supplemental Executive
Retirement 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 415 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 was originally effective on January 1,
1987. This Restatement is adopted effective January 1, 1988.
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").
"Accrued Benefit" means, at any time, the Participant's Normal
Retirement Benefit at Normal Retirement Date as provided in Section 4.1
multiplied by a fraction (not to exceed one), the numerator of which is the
Participant's Years of Service at the date of calculation and the
denominator of which is the number of Years of Service projected to his
Normal Retirement Date. The calculation of Normal Retirement Benefit for
this purpose shall be based on an estimation of the Participant's Social
Security Amount payable at age 65 under the Social Security Act in effect
at the time of calculation assuming level earnings to age 65. The
calculation of a Participant's Accrued Benefit shall be based on Average
Monthly Compensation as of the date of calculation. Years of Service shall
include all periods of Long-Term Disability counted for accruing Credited
Service under the Retirement Plan and, generally, Long-Term Disability shall
be treated under this Plan in a manner parallel to its treatment under the
Retirement Plan.
"Average Monthly Compensation" means Average Monthly Compensation as
defined in the Retirement Plan with the following modifications:
a. Average Monthly Compensation shall be computed on the basis of the
highest paid three years (i.e. non-overlapping twelve consecutive
calendar month periods) within the 60-month period immediately
preceding termination of employment, or Normal Retirement Date, if
earlier.
b. Average Monthly Compensation shall include no more than three
annual bonuses, whether or not deferred, but shall not include any
amounts paid during employment as a result of earlier deferral of
compensation included within the definition of Average Monthly
Compensation under this Plan.
"Change in Control" shall mean any transaction which will be
deemed to have taken place if:
a. Any person or entity (or group of affiliated persons or entities)
(including a group which is deemed a "person" by Section 13(d)(3)
of the Securities Exchange Act of 1934) acquires in one or more
transactions, whether before or after the date of this Agreement,
ownership of more than fifty percent (50%) of the outstanding
shares of stock entitled to vote in the election of directors of
the Company.
b. As a result of, or in connection with, any such acquisition or any
related proxy contest, cash tender or exchange offer, merger or
other business combination, sale of assets or any combination of
the foregoing transactions, the persons who were directors of the
Company immediately before such acquisition shall cease to
constitute five sixths of the membership of the Board or of the
board of directors of any successor to the Company after such
transaction (but not more than twelve (12) months after such
transaction).
c. "Ownership" means ownership, directly or indirectly, of more than
fifty percent (50%) of such outstanding voting stock of Company
other than:
(i) by a person owning such shares merely of record (such as a
member of a securities exchange, a nominee or a securities
depositary system),
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(ii) by a person as a bona fide pledgee of shares prior to a
default and determination to exercise powers as an owner of
the shares,
(iii) by a person who is not required to file statements on
Schedule 13D by virtue of Rule 13d-1(b) of the Securities
and Exchange Commission under the Securities Exchange Act of
1934, or
(iv) by a person who owns or holds shares as an underwriter
acquired in connection with an underwritten offering pending
and for purposes of their resale.
Without limitation, the right to acquire ownership shall not
of itself constitute ownership of shares.
"Committee" means the Compensation 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.
"Early Retirement Date" means the first day of any month following
termination of employment subsequent to the date of attainment of age 55.
"Eligible Employee" means each employee of the Company or a Subsidiary
who is both (1) a participant in the Retirement Plan and (2) an individual
specifically designated as eligible to participate in this Plan by the Board
of Directors.
"Normal Retirement Date" means the first day of any month subsequent
to the later of a Participant's attainment of age 62 or completion of
twenty-five Years of Service; provided however that the Normal Retirement
Date for James F. Montgomery and John F. Maher shall be the later of the
first day of the month following the later of attainment of age 60 or
completion of twenty Years of Service; and, provided further that for
purposes of this Plan, Years of Service attributed to Anthony C. La Scala
shall be no less than Years of Service attributable to Edward R. Hoffman.
"Participant" means any Eligible Employee who is or becomes eligible
for participation in this Plan.
"Plan" means the Great Western Supplemental Executive Retirement Plan
of Great Western Financial Corporation as set forth in this Agreement and
all subsequent amendments hereto.
"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 are now owned or shall hereafter be acquired by the
Company; also a like subsidiary of any such subsidiary.
"Years of Service" means years of Continuous Service except that all
Years of Service shall be credited under this Plan regardless of the Break
in Service rules contained in the Retirement Plan. For John F. Maher, his
Years of Service shall also include (to the extent not otherwise credited
hereunder) (a) years of service as a nonemployee director of the Company and
(b) the number of years during what would have been the remaining term of
his Employment Agreement with the Company if such Employment Agreement is
terminated by the Company without cause (as defined in his Employment
Agreement) or terminated by Mr. Maher within 60 days of any uncured material
breach of the Employment Agreement by the Company.
ARTICLE II
PARTICIPATION
2.1 - ELIGIBILITY REQUIREMENTS.
Any executive who is an Eligible Employee shall become a Participant
on the January 1 designated by the Board or such other date designated by
the Board. Individual Participants as of January 1, 1988 are James F.
Montgomery, John F. Maher, J. Lance Erikson, Carl F. Geuther, Edward R.
Hoffman, Anthony C. La Scala, William J. Marschalk, and Michael M. Pappas.
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 - NORMAL RETIREMENT BENEFIT.
Except as hereinafter provided, the amount of the monthly retirement
benefit payable to a Participant for life, commencing on or after his Normal
Retirement Date and payable for the period benefits are payable under the
Retirement Plan, will be:
(a) Sixty percent (60%) of the Participant's Average Monthly
Compensation (sixty-five percent (65%) in the case of James F.
Montgomery and John F. Maher), less
(b) 100% of the Participant's Social Security Amount reduced, for
Normal Retirement Dates preceding age 65, by the factors set
out in Section 4.4 (ii) of the Retirement Plan, less
(c) the monthly benefit payment which is payable in the form of a
single life annuity under the Retirement Plan.
4.2 - EARLY RETIREMENT BENEFIT.
Except as hereinafter provided, the amount of the monthly retirement
benefit, payable to a Participant for the period benefits are payable under
the Retirement Plan, on his Early Retirement Date, but before his Normal
Retirement Date, shall be the Participant's Accrued Benefit reduced by 5/12
of 1% for each month, if any, by which his Early Retirement Date precedes
his Normal Retirement Date. Except as provided in Section 4.3 and Section
4.6 of this Plan no benefits shall be payable to a Participant if his or her
employment is terminated prior to attaining age 55. Provided, however, if
John F. Maher's Employment Agreement is terminated by the Company without
"cause" (as defined in his Employment Agreement) or if Mr. Maher's
Employment Agreement is terminated by Mr. Maher within 60 days of any
uncured material breach of the Agreement by the Company, he shall be 100%
vested in his Accrued Benefit as of the date of such termination of
employment and his benefit shall be payable upon the attainment of age 60
or, at his election, at an earlier date after attaining age 55 with the
reduction provided by this Section except as provided in Section 4.3.
4.3 - BENEFIT AFTER CHANGE IN CONTROL.
If a Change in Control occurs and, within 24 months after such Change
in Control, a Participant is involuntarily terminated, suffers a significant
diminution of duties and responsibilities, has a downward change of title,
or is forced to relocate thereby resulting in his resignation, a monthly
retirement benefit shall be payable to such Participant as follows:
(a) If the Participant's employment is terminated on or after
attainment of age 55, his monthly retirement benefit, payable
commencing the first day of the month after termination of
employment and continuing for the period benefits are payable
under the Retirement Date will be his Normal Retirement
Benefit computed by crediting all Years of Service to his
Normal Retirement Date with no reduction to be made for
commencement of benefits before Normal Retirement Date.
(b) If a Participant's employment is terminated prior to
attainment of age 55, he shall be 100% vested in his Accrued
Benefit as of the date of termination of employment and his
benefit shall be payable upon the date which would have been
his earliest Early Retirement Date if he had continued
employment, with the benefit payable unreduced for
commencement before Normal Retirement Date.
4.4 - 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. The Company shall hold
such portions not paid in escrow. At the end of each calendar quarter
during the term of such escrow, the Company shall deposit into escrow an
amount equal to interest accrued during such calendar quarter on the amount
held in escrow during such calendar quarter at a rate equal to the rate then
payable on judgments in California. If it shall be determined at any point
in time, by a counsel mutually selected by the Company and Participant that
it is more likely than not that the payment of any or all of such amount
held in escrow would be deductible for tax purposes, such amount shall be
paid out of escrow to the Participant or Beneficiary. In the event of a
final determination by the Internal Revenue Service or of a final non-
appealable judicial decision that any such amount held in escrow will or
will not be deductible, such amount will be paid to the Company or
Participant or Beneficiary as appropriate. If it shall be determined at any
point in time, by a counsel mutually selected by the Company and
Participant, that it is more likely than not that the payment of any such
amount held in escrow would never be deductible for tax purposes, such
amount shall be paid out of escrow to the Company. For purposes of this
paragraph, the value of any benefit shall be conclusively determined by the
independent auditors of the Company in accordance with the principles of
Section 280G of the Code.
4.5 - PAYMENT OF RETIREMENT BENEFITS.
Upon a Participant's retirement the Company shall commence to pay to
such retired Participant the monthly retirement benefit to which he is
entitled under this Plan commencing on the date he elects to have benefits
commence, and payable for the period benefits are payable, under the
Retirement Plan. No benefits shall be payable under this Plan while the
Participant is accruing benefits under the Retirement Plan.
4.6 - AUGENTATION OF RETIREMENT PLAN BENEFITS.
To the extent not provided by this Plan, and not in duplication of
benefits otherwise payable under this Plan or any other deferred
compensation plan or employment agreement provided by the Company or a
Subsidiary, the benefit payable to a Participant on account of termination
of employment or to a Surviving Spouse, spouse or Contingent Beneficiary on
account of death of a Participant shall be augmented under this Plan to the
extent that any such benefit under the Retirement Plan otherwise payable is
reduced by the provisions of Article V of the Retirement Plan or Section 415
of the Code.
4.7 - OPTIONAL RETIREMENT BENEFITS.
The benefits determined under this Plan in the form of a single life
annuity may also be paid, at the election of an unmarried Participant, in
one of the alternative forms provided in the Retirement Plan which is the
Actuarial Equivalent of the benefit under this Plan.
4.8 - SMALL BENEFIT.
Notwithstanding any other provision or provisions of this Plan to the
contrary, if any Normal, or Early Retirement Benefit 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.
4.9 - 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.
4.10 - SPOUSE DEATH BENEFIT.
The monthly benefit, if any, payable upon the death of a Participant
to the Participant's Surviving Spouse or spouse, commencing upon the date
that monthly benefits to such spouse commence under Section 4.8 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 4.8
of the Retirement Plan using, however, the benefit being paid to such
Participant on his date of death under this Plan or which would have
been received on or after his Early Retirement Date under this Plan in
the form of single life annuity had the Participant retired on the day
immediately preceding the date of his death
over
(b) The amount of the monthly spouse death benefit payable to the
Participant's Surviving Spouse or spouse for life pursuant to
Section 4.8 of the Retirement Plan.
(c) In no event shall the Actuarial Equivalent of the amount
payable to such Surviving Spouse or spouse under this Plan be
less than twelve times 150% of a Participant's Average Monthly
Compensation calculated as of the earliest date benefits would
have been payable under this Plan on or after the date of his
death, less the Actuarial Equivalent of the Surviving Spouse
or spouse benefit payable under the Retirement Plan. Such an
amount shall be paid in a cash lump sum.
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 and decide or
resolve any and all questions including interpretations of this Plan, as may
arise in connection with the Plan. 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 (i) any augmentation of
Retirement Plan benefits pursuant to Section 4.6 of this Plan or of (ii) an
Accrued Benefit which John F. Maher had already become entitled to pursuant
to Section 4.2 of this Plan or (iii) an Accrued Benefit (including a
Spouse's Death Benefit) which any Participant who has attained age 55 would
have been entitled to receive if he had terminated employment immediately
prior to the effective date of such amendment or 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 11th day of April, 1988.
GREAT WESTERN FINANCIAL
CORPORATION
By ______________________
William J. Marschalk
By ______________________
J. Lance Erikson
EXHIBIT A
Inclusion of Clifford A. Miller in Great Western
Supplemental Executive Retirement Plan
WHEREAS, this Corporation maintains the Great Western Supplemental
Executive Retirement Plan (1988 Restatement) (the "SERP") for the benefit
of certain employees; and
WHEREAS, this Board is responsible for designating persons eligible
to participate in the SERP and the terms of their participation.
NOW, THEREFORE BE IT RESOLVED, THAT Clifford A. Miller is included in
the SERP effective January 1, 1988;
RESOLVED FURTHER that the following terms shall apply to Mr. Miller's
inclusion:
1. Mr. Miller's normal retirement benefit shall be the 60% benefit set out
in Section 4.1 of the SERP. Such benefit will be payable, except as
provided below, only upon his active employment with the corporation or its
affiliates until attainment of age 65.
2. In the event of a Change of Control as defined in the SERP, Mr. Miller
will be entitled to the protection provided by Section 4.3(a) of the SERP
subject to the benefit limitations contained in Section 4.4 of the SERP.
3. In the event of Long-Term Disability as defined in the Great Western
Retirement Plan, Mr. Miller will continue to be credited with Years of
Service through the period of Long-Term Disability.
4. In the event of Mr. Miller's death prior to attainment of age 65, his
Surviving Spouse, if any, as of the date of his death will be entitled to
receive a benefit for her life equal to 30 percent of Mr. Miller's Average
Monthly Compensation computed as of his date of death.
5. In the event of Mr. Miller's involuntary termination without cause
prior to attainment of age 65, he will be entitled to a percentage of the
full benefit payable pursuant to paragraph 1 above based on his age at the
time of such termination but with the benefit payable at attainment of age
65: 25% if so terminated after age 62; 50% if so terminated after age 63,
and; 75% if so terminated after age 64.
RESOLVED FURTHER that a copy of these resolutions shall be appended
to the copy of the SERP as Exhibit A.
EXHIBIT B
AMENDMENT 1992-1
GREAT WESTERN SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Special Provisions Concerning Dissolution
of Marriage of James F. Montgomery
WHEREAS, this corporation maintains the Great Western Supplemental
Executive Retirement Plan (1988 Restatement) (the "SERP") for the benefit
of certain employees; and
WHEREAS, the Board of Directors has the power, pursuant to Section 6.1
of the SERP to amend the SERP,
NOW, THEREFORE, BE IT RESOLVED, that this Amendment 1992-1 is hereby
adopted, to become effective upon the dissolution of marriage of James F.
Montgomery and Linda Montgomery, but only if these provisions reflect the
provisions of a final judgement or settlement agreement in the dissolution
proceeding.
The following, which, upon becoming effective, shall be added to the
SERP as Exhibit B and incorporated by reference as if set forth fully in the
SERP, sets forth the terms of the allocation of benefits between James F.
Montgomery and Linda Montgomery upon such dissolution. Upon becoming
effective, the provisions of this Exhibit B shall supersede any contrary or
inconsistent provisions of the SERP:
1. While James F. Montgomery is alive, the amount of benefit
payable from the SERP with respect to James F. Montgomery shall be
calculated as if all his accrued benefits under the Retirement Plan were
payable to him and without regard to any qualified domestic relation orders
pertaining to the Retirement Plan. While James F. Montgomery and Linda
Montgomery are both alive, the first $23,333.33 of any monthly benefit
otherwise payable to James F. Montgomery under the terms of the SERP shall
instead be payable to Linda Montgomery, who, upon the dissolution of her
marriage with James F. Montgomery, shall be the former spouse of James F.
Montgomery. Notwithstanding the preceding sentence, the monthly benefit
payable to Linda Montgomery from the SERP shall be reduced to the extent the
sum of the monthly benefits payable to her from the SERP, the Retirement
Plan and the Great Western Employee Savings Incentive Plan ("ESIP") exceeds
$23,333.33 per month. Such payments to Linda Montgomery shall commence when
payments to James F. Montgomery commence under the terms of the SERP and
shall continue until her death or the death of James F. Montgomery,
whichever occurs first. The payments made to Linda Montgomery shall reduce
the amounts otherwise payable to James F. Montgomery. If Linda Montgomery
predeceases James F. Montgomery on or after his retirement, the annual
benefit payable to Linda Montgomery under this Paragraph 1 shall be restored
to James F. Montgomery for as long as he lives.
2. This Paragraph 2 only applies if James F. Montgomery is survived
by Linda Montgomery and/or a subsequent spouse who would be treated as a
Surviving Spouse (for purposes of the pre-retirement Spouse's Death Benefit
under Section 4.10) or spouse (for purposes of the post-retirement Spouse's
Death Benefit under Section 4.10) (such subsequent spouse hereinafter
referred to as "Subsequent Spouse").
(a) The maximum monthly amount of the Spouse's Death Benefit
payable by the SERP to all persons under Section 4.10 and Exhibit B of the
SERP shall be calculated by assuming that James F. Montgomery is survived
by a Surviving Spouse (or spouse, as applicable) who is receiving the entire
pre-retirement or post-retirement spousal benefit provided by the Retirement
Plan with respect to James F. Montgomery, regardless of whether such a
spousal benefit is paid from the Retirement Plan. As described below, the
monthly amount of the total Spouse's Death Benefit payable to all persons
may be less than the amount described in the preceding sentence.
(b) If James F. Montgomery is survived by Linda Montgomery but not
by a Subsequent Spouse, then a Spouse's Death Benefit from the SERP shall
be paid to Linda Montgomery for her lifetime. Subject to subparagraph (a),
the monthly amount of such Spouse's Death Benefit shall be $23,333.00 minus
the sum of the monthly benefits payable to her from the Retirement Plan and
the ESIP. No other Spouse's Death Benefits shall be paid by the SERP.
(c) If James F. Montgomery is survived by a Subsequent Spouse but
not Linda Montgomery, then a monthly Spouse's Death Benefit from the SERP
shall be paid in an amount, if any, equal to the monthly amount described
in subparagraph (a) minus $23,333.33. Such monthly amount shall be divided
among such beneficiaries as are designated by James F. Montgomery in writing
to the Committee. No Subsequent Spouse shall be entitled to any of such
amounts under the SERP except to the extent such Subsequent Spouse is
designated by James F. Montgomery as a beneficiary. All Spouse's Death
Benefits (regardless of the beneficiary) shall cease upon the death of the
Subsequent Spouse. No other Spouse's Death Benefits shall be paid by the
SERP.
(d) If James F. Montgomery is survived by Linda Montgomery and a
Subsequent Spouse, then a Spouse's Death Benefit shall be paid as follows.
(1) Linda Montgomery shall receive a monthly Spouse's Death
Benefit in the amount described in subparagraph (b) for her lifetime. Linda
Montgomery shall not be entitled to any additional benefits even if she
outlives the Subsequent Spouse.
(2) Each month, for as long as Linda Montgomery and the
Subsequent Spouse are alive, any monthly amount of the Spouse's Death
Benefit (calculated under subparagraph (a)) remaining after payment of the
monthly amount described in subparagraph (d)(1) to Linda Montgomery, shall
be paid to (and divided among) such beneficiaries designated by James F.
Montgomery in writing to the Committee. No Subsequent Spouse of James F.
Montgomery shall be entitled to any of such amounts under the SERP except
to the extent such Subsequent Spouse is designated by James F. Montgomery
as a beneficiary.
(3) If Linda Montgomery outlives the Subsequent Spouse, all
monthly payments pursuant to subparagraph (d)(2) shall cease upon the death
of the Subsequent Spouse. Monthly payments to Linda Montgomery shall
continue pursuant to subparagraph (d)(1).
(4) If the Subsequent Spouse outlives Linda Montgomery, all
benefits under this subparagraph (d) shall cease. Upon the death of Linda
Montgomery, monthly payments shall be made in accordance with subparagraph
(c).
3. If James F. Montgomery is not survived by a Subsequent Spouse
or by Linda Montgomery, no Spouse's Death Benefit shall be payable under the
SERP.
GREAT WESTERN
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(1988 RESTATEMENT)
PRO FORMA
INCORPORATING ALL AMENDMENTS
THROUGH JULY 1, 1995
TABLE OF CONTENTS
Page
ARTICLE I TITLE, PURPOSE AND DEFINITIONS 1
1.1 Title 1
1.2 Purpose 2
1.3 Definitions 2
ARTICLE II PARTICIPATION 8
2.1 Eligibility Requirements 8
ARTICLE III PAYMENT OF BENEFITS 9
3.1 Payment 9
ARTICLE IV RETIREMENT BENEFITS 9
4.1 Normal Retirement Benefit 9
4.2 Early Retirement Benefit 10
4.3 Benefit After Change in Control 11
4.4 Benefit Limitation 12
4.5 Payment of Retirement Benefits 14
4.6 Augmentation of Retirement Plan
Benefits 14
4.7 Optional Retirement Benefits 15
4.8 Small Benefit 15
4.9 Forfeiture of Benefits 15
4.10 Spouse Death Benefit 16
ARTICLE V COMMITTEE 17
5.1 Committee 17
5.2 Agents 17
5.3 Binding Effect of Decisions 18
5.4 Indemnity 18
ARTICLE VI AMENDMENT AND TERMINATION 19
6.1 Amendments and Termination 19
6.2 Protection of Accrued Benefits 19
ARTICLE VII MISCELLANEOUS 20
7.1 Unfunded Plan 20
7.2 Unsecured General Creditor 20
7.3 Trust Fund 21
7.4 Nonassignability 22
7.5 Limitation on Participants' Rights 22
7.6 Participants Bound 22
7.7 Receipt and Release 23
7.8 California Law Governs 23
7.9 Headings and Subheadings 24
7.10 Instrument in Counterparts 24
7.11 Gender 24
7.12 Successors and Assigns 24
Exhibit A 26
Exhibit B 29