EXHIBIT 10.o
HEILIG-MEYERS
EMPLOYEES' SUPPLEMENTAL PROFIT SHARING
AND RETIREMENT SAVINGS PLAN
The Heilig-Meyers Employees' Supplemental Profit Sharing and Retirement
Savings Plan, originally adopted effective as of March 1, 1991, is hereby
amended and restated effective as of January 1, 1999.
PURPOSE
This Plan is established and maintained solely for the purpose of providing
a select group of highly-compensated and management employees with the
opportunity to defer that portion of their compensation that they are precluded
from deferring under the Heilig-Meyers Employees' Profit Sharing and Retirement
Plan as a result of limitations imposed under the Internal Revenue Code of 1986.
The Plan is also intended to provide eligible employees with deferred
compensation equal to the amount of matching contributions that cannot be
allocated to their accounts under the Employees' Profit Sharing and Retirement
Savings Plan. The Board has determined that the benefits to be paid under this
Plan constitute reasonable compensation for the services rendered and to be
rendered by eligible employees.
DEFINITIONS
Whenever used in this Plan, unless the context clearly indicates otherwise,
the following terms shall have the following meanings:
2.01 Account: A Participant's Deferrals Account and Matching Credits
Account, collectively.
2.02 Adjustment Date: The last day of each Plan Year. The Committee may
establish more frequent Adjustment Dates, if the Committee deems it appropriate.
2.03 Beneficiary: Any person, persons or entity designated by a Participant
or otherwise entitled to receive Benefits payable to the Participant following
his or her death. Beneficiary designations shall be made as part of a
Participant's Deferral Election and may be changed by the Participant at any
time before the date on which payment of the Participant's Benefits is to
commence. A Participant may designate primary and secondary Beneficiaries.
2.04 Benefits: The aggregate amount of Deferrals, Matching Credits and
Earnings that have been credited to a Participant's Account with respect to a
Deferral Election.
2.05 Board: The Board of Directors of the Company.
2.06 Code: The Internal Revenue Code of 1986, as amended, or any
subsequently enacted federal revenue law. Reference to a particular section of
the Code shall include a reference to any regulations issued under the section
and to the corresponding section of any subsequently enacted federal revenue
laws.
2.07 Committee: The administrative committee established pursuant to the
terms of the Qualified Plan.
2.08 Company: Heilig-Meyers Company and any other Related Company that
adopts the Qualified Plan with the consent of the Company.
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2.09 Company Matching Contributions: Has the meaning given to that term
under the Qualified Plan.
2.10 Company Matching Contributions Account: Has the meaning given to that
term under the Qualified Plan.
2.11 Compensation: The total amounts paid by the Company during the Plan
Year to an Eligible Employee for personal services, but excluding payment of
relocation expenses and compensation received in connection with stock option
plans, stock purchase plans and fringe benefit arrangements. Compensation shall
be determined before taking into account any reduction resulting from a
Participant's election to have Salary Reduction Contributions or Deferrals made
on his or her behalf pursuant to the Qualified Plan or under this Plan.
2.12 Deferral Election: An election filed with the Company by a Participant
to defer Compensation under the Qualified Plan and this Plan.
2.13 Deferrals: Amounts credited to a Participant's Deferrals Account under
Section 4.01.
2.14 Deferrals Account: The bookkeeping account established and maintained
for each Participant to record such Participant's Deferrals and Earnings
thereon.
2.15 Earnings: The amount of earnings, if any, that accrue on Participants'
Deferrals and Matching Credits pursuant to Section 4.06.
2.16 Eligible Employee: Any employee who:
(i) is a management or highly compensated employee (within the
meaning of section 201(2) of the Employee Retirement Income Security
Act of 1974);
(ii) is designated by the Committee as eligible for participation
in the Plan; and
(iii) is a participant in the Qualified Plan.
2.17 Matching Credits: Amounts credited to a Participant's Matching Credits
Account under Section 4.02.
2.18 Matching Credits Account: The bookkeeping account established and
maintained for each Participant to record such Participant's Matching Credits,
and Earnings thereon.
2.19 Participant: Each Eligible Employee who elects to participate in this
Plan.
2.20 Payment Election: An election filed with the Company by a Participant
that specifies the date on which payment of his or her Benefits is to commence,
and the form in which such Benefits are to be paid. The timing and form of
payment selected by the Participant must be consistent with the provisions of
Section V of the Plan. Except in the case of a Participant's death or
disability, payment of Benefits may not commence before a Participant attains
age 50.
2.21 Plan: The "Heilig-Meyers Employees' Supplemental Profit Sharing and
Retirement Savings Plan," as set forth herein and as amended from time to time.
2.22 Plan Year: The calendar year.
2.23 Qualified Plan: The Heilig-Meyers Employees' Profit Sharing and
Retirement Savings Plan, as amended from time to time.
2.24 Related Company: Has the meaning given to that term under the
Qualified Plan.
2.25 Retirement: A Participant's retirement from the Company in accordance
with the Company's standard retirement policy.
2.26 Retirement Date: The date on which the Participant elects to retire
from the Company in accordance with the Company's standard retirement policy.
2.27 Salary Reduction Contributions: Has the meaning given to that term
under the Qualified Plan.
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2.28 Salary Reduction Contributions Account: Has the meaning given to that
term under the Qualified Plan.
2.29 Tax Limits: The limitations on compensation and contributions imposed
under the Qualified Plan pursuant to Code Sections 401(a)(17), 402(g), 415,
401(k) and 401(m), and any limitations adopted by the Committee to comply with
such Code Sections.
2.30 Termination Date: The date on which a Participant terminates
employment with the Company other than on account of his or her Retirement or
death.
2.31 Termination of Employment: A Participant's termination of employment
with the Company other than on account of his or her Retirement or death.
PARTICIPATION
3.01 Election to Participate
(a) An Eligible Employee may elect to become a Participant in this
Plan as of any January 1 by filing a Deferral Election with the Company by
no later than the November 30 immediately preceding the January 1 on which
the Eligible Employee's participation is to become effective.
(b) If an individual first becomes an Eligible Employee after January
1 of a Plan Year because he or she has been designated by the Committee as
eligible for participation in the Plan, the Eligible Employee may become a
Participant by filing a Deferral Election with the Company within 15 days
after the date on which the Participant is notified that he or she has
become an Eligible Employee. The Eligible Employee shall become a
Participant effective as of the date on which he or she files a Deferral
Election with the Company.
3.02 Deferral Elections
(a) A Participant's Deferral Election shall apply only to Compensation
earned after the effective date of the Deferral Election. Only one Deferral
Election may be made with respect to Compensation to be earned in a single
Plan Year.
(b) A Participant's Deferral Election shall continue in effect until
the close of the Plan Year to which it relates and shall be irrevocable
while in effect. However, if the Participant ceases to be an Eligible
Employee during a Plan Year, his or her Deferral Election shall terminate
as of the date on which he ceases to be an Eligible Employee.
(c) Participants may make Deferral Elections for subsequent Plan Years
by filing a new Deferral Election with the Company by no later than the
November 30 immediately preceding the January 1 of the Plan Year to which
the Deferral Election will relate. All Deferral Elections shall
automatically terminate as of the close of the Plan Year to which they
relate. A Participant may elect to no longer actively participate in the
Plan in subsequent Plan Years by not making Deferral Elections for such
subsequent Plan Years.
3.03 Termination of Participation; Re-employment: Participation shall cease
upon a Participant's termination of employment or if the Participant ceases to
be an Eligible Employee. Upon re-employment as an Eligible Employee, a former
Participant may again become a Participant in the Plan effective as of the
January 1 next following the date of his or her reemployment by filing a
Deferral Election with the Company in accordance with the provisions of Section
3.01. If a Participant elects not to become an active Participant for a Plan
Year, he or she may become an active Participant effective as of the next
following January 1, or any subsequent January 1, by filing a Deferral Election
with the Company in accordance with the provisions of Section 3.01 (provided
that he or she is an Eligible Employee).
3.04 Change in Status: If a Participant ceases to be an Eligible Employee,
or elects not to be an active Participant but continues to be employed by the
Company, Deferrals and Matching Credits shall be suspended. All other provisions
of this Plan shall remain in effect, and the Participant shall continue to be
entitled to receive credits pursuant to Section 4.03 and to receive Earnings,
until his or her Benefits are fully distributed pursuant to Section V.
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SECTION IV
DEFERRALS, MATCHING CREDITS AND ACCOUNTS
4.01 Participant Deferrals: A Participant will be entitled to make
Deferrals under this Plan in accordance with procedures established by the
Committee. By making a Deferral Election, a Participant shall elect to defer
Compensation that he or she is not permitted to contribute to the Qualified Plan
because of the Tax Limits. In no event may a Participant make Deferrals during a
Plan Year unless he has made the maximum amount of Salary Reduction
Contributions to the Qualified Plan permitted under Code Section 402(g) or under
the terms of the Qualified Plan. The aggregate amount of Deferrals that a
Participant may make under this Section 4.01 in any given Plan Year shall not
exceed the excess of (a) the amount that the Participant would have been able to
contribute to the Qualified Plan for the Plan Year if there were no Tax Limits,
over (b) the amount of any Salary Reduction Contributions contributed to the
Participant's Salary Reduction Contributions Account under the Qualified Plan
for the Plan Year (including any Salary Reduction Contributions returned to the
Participant as excess contributions under the Qualified Plan).
4.02 Matching Credits: Each Plan Year, the Company shall credit to the
Matching Credits Account of each eligible Participant an amount equal to the
excess of (a) the Company Matching Contributions that the Participant would have
had credited to his Company Matching Contributions Account under the Qualified
Plan if there were no Tax Limits and if the Participant had made Salary
Reduction Contributions to the Qualified Plan equal to the sum of his actual
Salary Reduction Contributions under the Qualified Plan and his Deferrals under
this Plan for the Plan Year, over (b) any Company Matching Contributions
contributed to the Participant's Company Matching Contributions Account under
the Qualified Plan for the Plan Year. Amounts credited to a Participant's
Matching Credits Account shall be payable to the Participant only if the
Participant would have had a vested interest in such amounts had they been
credited to the Participant's Company Matching Contributions Account under the
Qualified Plan.
4.03 Change of Status: Participant Deferrals pursuant to Section 4.01 and
Matching Credits pursuant to Section 4.02 for a Participant who changes his or
her status will be governed by the following provisions:
(a) A Participant who elects not to participate in the Plan for a
subsequent Plan Year will be credited with Deferrals and Matching Credits
through and ending with the last payroll period of the Plan Year to which
his or her current Deferral Election relates.
(b) A Participant who ceases to be an Eligible Employee will be
credited with Deferrals and Matching Credits through and ending with the
payroll period within which he or she ceases to be an Eligible Employee or
until such other date as is administratively practicable.
4.04 Deferrals Accounts: For bookkeeping purposes only, the Company shall
maintain a Deferrals Account for each Participant to which each Participant's
Deferrals shall be credited. Deferrals shall be credited to a Participant's
Deferrals Account as of the end of the month in which the Compensation
constituting such Deferral is earned. Any Earnings shall be credited to the
Participant's Deferrals Account as of each Adjustment Date.
4.05 Matching Credits Accounts: For bookkeeping purposes only, the Company
shall maintain a Matching Credits Account for each Participant to which Matching
Credits made on behalf of such Participant shall be credited. Matching Credits
shall be credited to a Participant's Matching Credits Account at least annually.
Any Earnings shall be credited to the Participant's Matching Credits Account as
of each Adjustment Date.
4.06 Earnings on Accounts. Before the beginning of each Plan Year, the
Committee shall establish an interest rate ("Applicable Interest Rate") for
computing earnings on the amount of Deferrals and Matching Credits that each
Participant has credited to his or her Account for that Plan Year. The
Applicable Interest Rate shall continue to apply to those Deferrals and Matching
Credits in all subsequent Plan Years. The Committee shall establish a separate
Applicable Interest Rate for each Plan Year in which Deferrals and Matching
Credits are first credited to Participants' Accounts. The Committee may, in its
sole discretion, make changes to an Applicable Interest Rate after it is
established.
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SECTION V
PAYMENT OF BENEFITS
5.01 Payment Elections:
(a) A Participant's Benefits shall be paid in accordance with the
terms of the Payment Election relating to such Benefits and in accordance
with the provisions of this Section V. A Participant may elect to have the
Benefits attributable to any single Deferral Election paid at a time and in
a form different from the time and form of payment elected with respect to
the Benefits attributable to any other Deferral Election, provided that
such election is made in accordance with the provisions of this Section V.
Each Participant, and each former Participant with Benefits under the Plan,
must have at least one or more Payment Elections on file with the Company
at all times.
(b) A Payment Election shall become effective as of the first day of
the month immediately following the date on which the Payment Election is
filed with the Company.
(c) Subject to the limitations described in subsection (d) below, a
Participant may change a Payment Election or correct a failure to make a
complete Payment Election by filing a new Payment Election with the
Company. Such new Payment Election shall become effective as of the first
day of the month immediately following the date on which the new Payment
Election is filed with the Company. The new Payment Election may specify
that a Participant's Benefits be paid as of a date different from the date
specified in the Participant's current Payment Election or be paid in a
form of payment different from the form of payment specified in the
Participant's current Payment Election provided that (i) the new payment
date is at least 12 or more months after the effective date of the new
Payment Election, and (ii) the payment date specified in the current
Payment Election is at least 12 or more months after the effective date of
the new Payment Election.
(d) A Participant may change a Payment Election relating to a Deferral
Election only once during a Plan Year and up to a maximum of three (3)
times. A Participant may not change a Payment Election after payments have
commenced under such Payment Election.
5.02 Timing of Payment:
(a) A Participant's Benefits shall begin to be distributed as soon as
practicable following the date specified in the Participant's Payment
Election and effective as of the first day of a calendar month. The date
specified in the Payment Election may be either the (i) Participant's
Retirement Date or (ii) the date on which the Participant will attain age
50 or some later specified age. If a Participant has a Termination of
Employment prior to the payment date specified in his Payment Election, his
Benefit shall be paid as soon as practicable following his Termination Date
in the form prescribed in Section 5.03 below.
(b) In the event a Participant fails to designate a date in the
Payment Election, a Participant's Benefits automatically shall be
distributed as soon as practicable following the earliest of (i) the
Participant's death, (ii) the Participant's Retirement Date, or (iii) the
Participant's Termination Date.
5.03 Form of Payment: If a Participant's Benefits are to be paid on account
of the Participant's Termination of Employment, the entire amount of the
Participant's Benefits will be paid in the form of a single lump sum payment. In
all cases other than the Participant's death, Benefits shall be paid in the form
designated by the Participant in the Payment Election relating to such Benefits.
The available distribution forms are as follows:
(i) A single lump sum payment.
(ii) Annual installments over a term of five (5), ten (10), or fifteen
(15) years, as selected by the Participant. If the Participant dies before
the completion of installment payments, any remaining Benefits shall be
paid to his or her Beneficiary. If a Beneficiary who is receiving payments
dies, any remaining balance of the account shall be paid to the personal
representative of the Beneficiary's estate.
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If a Participant has not designated the form in which his or her Benefits are to
be paid before the date on which the Benefits become payable, such Benefits will
be distributed to the Participant in a single lump sum payment as of the date on
which they are first payable.
5.04 Method of Payment: All payments to any Participant or Beneficiary
under this Plan shall be made in cash.
5.05 Death Benefits:
(a) In the event of a Participant's death, the Participant's
Beneficiary shall receive Benefits equal to the greater of (i) seventy-five
percent (75%) of the total Benefits that would have been paid to the
Participant had the Participant survived to age 65 (calculated in a manner
determined by the Committee) or (ii) the Participant's total Benefits as of
the date of his or her death. The Beneficiary shall be entitled to elect to
receive such Benefits under one of the optional forms of payment described
in Section 5.03.
(b) Notwithstanding the foregoing, if a Participant dies prior to the
second December 31 following the effective date of a Deferral Election, his
or her Beneficiary shall receive Benefits equal to the total Benefits
relating to that Deferral Election as of the date of the Participant's
death.
5.06 Disability: If a Participant becomes permanently disabled, the
Participant may elect to receive all or a portion of his or her Benefits before
the payment date specified in his or her Payment Election. A Participant will be
considered permanently disabled for purposes of this Section 5.06 only if (i)
the Participant has been determined to be permanently disabled under the
provisions of the Qualified Plan and (ii) the Committee determines that payment
of all or a portion of the Participant's Benefits is necessary to alleviate
financial hardships caused by the permanent disability of the Participant. The
amount of Benefits available for payment to a permanently disabled Participant
under this Section 5.06 are the total Benefits to which the Participant is
entitled as of the date of the Committee's determination that he or she is
permanently disabled.
SECTION VI
UNFUNDED PLAN
There is no fund associated with this Plan. The Company shall be required
to make payments only as Benefits become due and payable. No Participant or
Beneficiary shall have any right, other than the right of an unsecured general
creditor, against the Company in respect to the Benefits payable, or which may
be payable, to such Participant or Beneficiary hereunder. Without affecting its
obligations to or rights of Participants and Beneficiaries under the Plan, the
Company may establish a grantor trust (within the meaning of Sections 671
through 679 of the Code) for Participants and Beneficiaries and deposit funds
with the trustee of such trust to provide the Benefits to which Participants and
Beneficiaries may be entitled under the Plan. The funds deposited with the
trustee or trustees of any such trust, and the earnings thereon, will be
dedicated to the payment of the Benefits under the Plan but shall remain subject
to the claims of the general creditors of the Company. If the Company, acting in
its sole discretion, establishes a reserve or other fund associated with this
Plan, then, except as may otherwise be provided in the instrument pursuant to
which such reserve or fund is established, no Participant or Beneficiary shall
have any right to or interest in any specific amount or asset of such reserve or
fund by reason of amounts which may be payable to such person under this Plan,
nor shall such person have any right to receive any payment under this Plan
except as and to the extent expressly provided in this Plan.
SECTION VII
MISCELLANEOUS PROVISIONS
7.01 Non-Guarantee of Employment: Nothing contained in this Plan shall be
construed as a contract of employment between the Company and any Participant,
or as a right of any such Participant to be continued in the employment of the
Company or as a limitation of the right of the Company to deal with any
Participant, as to their hiring, discharge, layoff, compensation, and all other
conditions of employment in all respects as though this Plan did not exist.
7.02 Rights Under Qualified Plan: Nothing in this Plan shall be construed
to limit, broaden, restrict, or grant any right to a Participant or Beneficiary
under the Qualified Plan, nor in any way to limit, modify, repeal or otherwise
affect the Company's right to amend or modify the Qualified Plan.
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7.03 Amendments/Termination: The Company reserves the right to amend or
terminate this Plan by vote duly adopted by the Board (or any duly authorized
committee thereof); provided, however, that no such amendment or termination
shall adversely affect the total Benefits to which a Participant is entitled as
of the date of amendment or termination of the Plan.
7.04 Restrictions on Transfer: Any benefits to which a Participant or
Beneficiary may become entitled under this Plan are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, garnishment by
creditors or encumbrance, and any attempt to do so is void. Benefits are not
subject to attachment or legal process for the debts, contracts, liabilities,
engagements or torts of a Participant or Beneficiary. This Plan does not give a
Participant or Beneficiary any interest, lien, or claim in or against any
specific assets of the Company. Participants and their Beneficiaries have only
the rights of general creditors of the Company.
7.05 Administration:
(a) This Plan shall be administered by the Committee. The Committee
may adopt such rules, regulations and bylaws and may make such decisions as
it deems necessary or desirable for the proper administration of the Plan.
The Committee shall have the express discretionary authority to determine
eligibility for Benefits and to interpret the provisions of this Plan. All
rules and decisions of the Committee shall be uniformly and consistently
applied to all Participants in similar circumstances. The determinations of
the Committee shall be final and binding on all persons for all purposes,
and there shall be no appeal from any ruling of the Committee that is
within its authority, except as otherwise provided herein.
(b) Prior to paying any benefit under the Plan, the Committee may
require the Participant, former Participant or Beneficiary to provide such
information or material as the Committee, in its sole discretion, shall
deem necessary for it to make any determination it may be required to make
under the Plan. The Committee may withhold payment of any benefit under the
Plan until it receives all such information and material and is reasonably
satisfied of its correctness and genuineness.
(c) If for any reason a benefit payable under this Plan is not paid
when due, the Participant or Beneficiary may file a written claim with the
Committee. If the claim is denied or no response is received within ninety
(90) days after the date on which the claim was filed with the Committee
(in which case the claim will be deemed to have been denied), the
Participant or Beneficiary may appeal the denial to the Board within ninety
(90) days of receipt of written notification of the denial or the end of
the ninety (90) day period specified above, whichever occurs first. In
pursuing an appeal, the Participant or Beneficiary may request that the
Board review the denial, may review pertinent documents, and may submit
issues and documents in writing to the Board. A decision on appeal will be
made within sixty (60) days after the appeal is made, unless special
circumstances require the Board to extend the period for another sixty (60)
days.
7.06 Withholding of Taxes, etc.: All amounts payable hereunder shall be
reduced for the amounts required to be withheld pursuant to any applicable
federal, state or local withholding tax requirements or any similar provisions.
7.07 Successor Company: In the event of the dissolution, merger,
consolidation or reorganization of the Company, provision may be made by which a
successor to all or a major portion of the Company's property or business shall
continue this Plan, and the successor shall have all of the powers, duties and
responsibilities of the Company under this Plan.
7.08 Governing Law: This Plan shall be construed and enforced in accordance
with, and governed by, the laws of the Commonwealth of Virginia, to the extent
not preempted by applicable federal law.
* * * * *
IN WITNESS WHEREOF, Heilig-Meyers Company has caused this Plan to be
executed the 4th day of May, 1999.
HEILIG-MEYERS COMPANY
By: /s/ William J. Dieter
Title: Senior Vice President, Accounting
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