EXHIBIT 10.3
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
AMENDMENT NO. 2
This Amendment No. 2 to the Great-West Life & Annuity Insurance Company
Supplemental Executive Retirement Plan is effective as of January 1, 1998 and
has been executed as of this 27th day of January, 1998.
WHEREAS, pursuant to Section 9.1 of the Plan, the Board of Directors of
Great-West Life & Annuity Insurance Company (the "Board" ) has the right to
amend the Plan; and
WHEREAS, the Board wishes to provide for additional annuity forms of
payment, allow an early retirement age, and allow a deferral of commencement of
benefits to age 70 1/2 ;
NOW, THEREFORE, the Plan shall be amended as follows:
FIRST, Section 5.5 shall be amended to add the following:
(c) Any other form of payment option available under the "Qualified
Plan," as amended from time to time, and which form of payment is allowable for
use under this Plan pursuant to the Internal Revenue Code.
SECOND, Section 2.9 Early Retirement Date shall be amended in its
entirety to read as follows:
"Early Retirement Date" means the first day of the month coincident with
or next following the month in which a Participant terminates employment with
Employer, if such termination date occurs on or after (1) the earlier of a date
mutually agreed to between the Employer and the Participant or such
Participant's attainment of age fifty-seven (57) and (2) the completion of
fifteen (15) Years of Service, but prior to the Participant's Normal Retirement
Date.
THIRD, Section 5.6 shall be amended to add the following:
Notwithstanding the above, a Participant may elect to defer the
commencement of payments to any later age up to age 70 1/2 by making such
election on a form and pursuant to any Plan requirements prior to the
commencement of payments outlined in this section.
IN WITNESS WHEREOF this Amendment No. 2 has been executed as of the date
first written above.
AMENDMENT NO. 1
TO THE
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS IS AN AMENDMENT to Great-West Life & Annuity Company Supplemental
Executive Retirement Plan (the "Plan") made this 26th day of November, 1996
pursuant to the discretion of the Executive Committee of the Board of Directors
of Great-West Life & Annuity Insurance Company (the "Company").
BACKGROUND STATEMENT
The Company desires to amend the Plan to recognize the transfer of the
U.S. employees covered by the Plan from The Great-West Life Assurance Company to
the Company and to conform the Plan with such transfer. Therefore, the Plan is
amended in the following respects, effective on January 1, 1997:
1. Section 2.10 shall be amended by substituting for the current text the
following:
"2.10 Employer. `Employer' means Great-West Life & Annuity Insurance Company
and/or any subsidiary or affiliate of the Employer designated by the Board."
2. Section 2.11 shall be amended by substituting for the current text the
following:
"2.10 Executive Deferred Compensation Plan. `Executive Deferred
Compensation Plan' means Great-West Life & Annuity Insurance Company
Executive Deferred Compensation Plan, formerly known as The Great-West Life
Assurance Company United States Employees' Executive Deferred Compensation
Plan, a nonqualified deferred compensation plan established by the Employer
for a select group of highly compensated and management employees of
Employer.
3. Section 2.19 shall be amended by substituting for the current text the
following:
"2.19 Qualified Plan. `Qualified Plan' means the Employees' and Agents'
Pension Benefits Plan for the Great-West Life & Annuity Insurance Company,
or any predecessor or successor defined benefit plan maintained by Employer
that qualifies under Section 401(a) of the Internal Revenue Code."
IN WITNESS WHEREOF, the Company has caused this amendment to be adopted
by resolution of the Executive Committee of its Board of Directors, a copy of
which is attached hereto.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE I--PURPOSE; EFFECTIVE DATE
The purpose of this Supplemental Executive Retirement Plan (the "Plan")
is to provide supplemental retirement benefits for certain key officers of the
Company. It is intended that the Plan will aid in retaining and attracting
individuals of exceptional ability by providing them with these benefits. This
Plan shall be effective as of January 1, 1993.
ARTICLE II--DEFINITIONS
Whenever used in this document, the following terms shall have the
meanings set forth in this Article unless a contrary or different meaning is
expressly provided:
2.1 Actuarial Equivalent
"Actuarial Equivalent" means equivalence in value between two (2) or
more forms and/or times of payment based on the 1984 Unisex Pension Mortality
Table (UP84) and an interest rate equal to the rate used by the Pension Benefit
Guaranty Corporation (PBGC) for valuing immediate annuities under terminating
pension plans. Such rate shall be the rate in effect on January 1 of the year of
determination.
2.2 Beneficiary
"Beneficiary" means the person, persons or entity entitled under Article
VI to receive any Plan benefits payable after a Participant's death.
2.3 Board
"Board" means the Board of Directors of the Company.
2.4 Cause
"Cause" means:
(a) The willful and continued failure by the Participant to
substantially perform the Participant's duties with Employer (other than
any such failure resulting from the Participant's incapacity due to
physical or mental illness), after a demand for substantial performance
is delivered to the Participant in writing by the Board or the Chief
Executive Officer of Employer which specifically identifies the manner
in which such executive or the Board believes that the Participant has
not substantially performed the Participant's duties; or
(b) The willful engaging by the Participant in gross misconduct
which is demonstrably injurious to Employer and its affiliates, taken as
a whole. For purposes of this paragraph, no act or failure to act, on
the Participant's part shall be considered "willful" unless done, or
omitted to be done, by the Participant not in good faith and without
reasonable belief that the Participant's action or omission was in the
best interest of Employer.
Notwithstanding the foregoing, the Participant shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to the Participant a copy of a notice of termination from the Board or the Chief
Executive Officer of Employer after reasonable notice to the Participant and an
opportunity for the Participant, together with the Participant's counsel, to be
heard before the Board or the Chief Executive Officer, and a finding that in the
good faith opinion of such executive or the Board, the Participant was guilty of
conduct set forth above in clauses (a) or (b) of the first sentence of this
Section and specifying the particulars thereof in detail. A Participant who is
terminated for Cause shall forfeit any right to receive benefits under the Plan.
2.5 Committee
"Committee" means the committee appointed by the Board to administer the
Plan pursuant to Article VII.
2.6 Company
"Company" means Great-West Life & Annuity Insurance Company, a Colorado
corporation, its successors, and any U.S. affiliate of the Company designated by
the Board.
2.7 Compensation
"Compensation" means the Salary, bonuses and commissions paid to a
Participant by Employer and considered to be "wages" for purposes of federal
income tax withholding. Compensation shall be calculated before reduction for
any amounts deferred by the Participant pursuant to the Company's tax qualified
plans which may be maintained under Section 401(k) or Section 125 of the
Internal Revenue Code, or under the Executive Deferred Compensation Plan.
Compensation does not include expense reimbursements or any form of noncash
compensation or benefits.
2.8 Disability
"Disability" means a physical or mental condition which prevents the
Participant from satisfactorily performing the Participant's usual duties for
Employer. The Committee shall determine the existence of Disability and may rely
upon advice from a medical examiner satisfactory to the Committee in making the
determination.
2.9 Early Retirement Date
"Early Retirement Date" means the first day of the month coincident with
or next following the month in which a Participant terminates employment with
Employer, if such termination date occurs on or after such Participant's
attainment of age fifty-seven (57) and completion of fifteen (15) Years of
Service, but prior to the Participant's Normal Retirement Date.
2.10 Employer
"Employer" means The Great-West Life Assurance Company, a Canadian stock
life insurance company, and/or any subsidiary or affiliate of the Employer
designated by the Board.
2.11 Executive Deferred Compensation Plan
"Executive Deferred Compensation Plan" means The Great-West Life
Assurance Company United States Employees' Executive Deferred Compensation Plan,
a nonqualified deferred compensation plan established by the Employer for a
select group of highly compensated and management employees of Employer.
2.12 Final Annual Compensation
"Final Annual Compensation" means the Participant's Compensation earned
during the twelve (12) consecutive complete months of employment with Employer
prior to the Participant's Disability.
2.13 Final Average Compensation
"Final Average Compensation" means the Participant's Compensation earned
during the sixty (60) consecutive complete months out of the eighty-four (84)
months of employment with Employer during which the Participant's Compensation
is the highest, divided by sixty (60).
2.14 Final Average Salary
"Final Average Salary" means the Participant's Salary earned during the
sixty (60) consecutive complete months out of the last eighty-four (84) months
of employment with Employer during which the Participant's Salary is the
highest, divided by sixty (60).
2.15 Normal Retirement Date
"Normal Retirement Date" means the first day of the month coincident
with or next following the month in which a Participant terminates employment
with Employer, if such termination occurs on or after such Participant's
attainment of age sixty-two (62) and completion of fifteen (15) Years of
Service.
2.16 Participant
"Participant" means any individual who is participating in or has
participated in this Plan, and who has not yet received full benefits hereunder,
as provided in Article III.
2.17 Participation Agreement
"Participation Agreement" means the agreement filed by a Participant and
approved by the Board pursuant to Article III.
2.18 Plan
"Plan" means this Supplemental Executive Retirement Plan as amended from
time to time.
2.19 Qualified Plan
"Qualified Plan" means Part AA - United States Employees' and Agents'
Pension Benefits Plan for The Great-West Life Assurance Company, or any
successor defined benefit plan maintained by Employer and/or the Company that
qualifies under Section 401(a) of the Internal Revenue Code.
2.20 Qualified Plan Offset
"Qualified Plan Offset" means the Participant's benefit in the form of a
monthly single life annuity under the Qualified Plan less any amounts
attributable to the Guaranteed Fund or Surplus Fund, as those terms are defined
by the Qualified Plan, or any Participant voluntary contributions.
2.21 Retirement
"Retirement" means a Participant's termination from employment with
Employer at an Early Retirement Date or Normal Retirement Date, as applicable.
2.22 Salary
"Salary" means periodic payments made by Employer to the Participant on
a bi-monthly basis. Salary does not include commissions, bonuses, expense
reimbursements or any form of noncash compensation or benefits.
2.23 Supplemental Retirement Benefit
"Supplemental Retirement Benefit" means the benefit determined under
Article V of this Plan.
2.24 Target Amount
"Target Amount" means sixty percent (60%) of Final Average Compensation
multiplied by a fraction, the numerator of which is the Participant's actual
Years of Credited Service, not to exceed thirty (30), and the denominator of
which is thirty (30).
2.25 Termination Target Amount
"Termination Target Amount" means sixty percent (60%) of Final Average
Salary multiplied by a fraction, the numerator of which is the Participant's
actual Years of Credited Service, not to exceed thirty (30), and the denominator
of which is thirty (30), reduced by the early retirement factor at age sixty-two
(62) under the Qualified Plan.
2.26 Years of Credited Service
"Years of Credited Service" means the number of years of credited
service determined in accordance with the provisions of the Qualified Plan,
whether or not the Participant is a participant in such Plan.
2.27 Years of Service
"Years of Service" means the number of years of service determined in
accordance with the provisions of the Qualified Plan, whether or not the
Participant is a participant in such plan.
ARTICLE III--PARTICIPATION AND VESTING
3.1 Eligibility and Participation
(a) Eligibility. Eligibility to participate in the Plan shall be
limited to those key officers of the Company who are designated, from
time to time, by the Board.
(b) Participation. An employee's participation in the Plan shall be
effective upon notification to the employee by the Committee of
eligibility to participate, completion of a Participation Agreement and
acceptance of the Participation Agreement by the Company. Subject to
Section 3.2, participation in the Plan shall continue until such time as
the Participant terminates employment with Employer and as long
thereafter as the Participant is eligible to receive benefits under this
Plan.
3.2 Change in Employment Status
If the Board determines that a Participant's employment performance is
no longer at a level that deserves reward through participation in this Plan,
but does not terminate the Participant's employment with Employer, participation
herein and eligibility to receive benefits hereunder shall be limited to the
Participant's vested interest in such benefits as of the date designated by the
Board ("Participation Termination Date"). Such benefits shall be based solely on
the Participant's Years of Service, Years of Credited Service and Compensation
as of the Participation Termination Date.
3.3 Vesting
A Participant shall be one hundred percent (100%) vested after fifteen
(15) Years of Service with Employer.
ARTICLE IV--SURVIVOR BENEFITS
4.1 Pretermination Survivor Benefit
If a Participant dies while employed by Employer, Employer shall pay a
survivor benefit to the Participant's Beneficiary as follows:
(a) Amount. The amount of the survivor benefit shall be the
Actuarial Equivalent lump sum present value of the Participant's
Supplemental Retirement Benefit determined under the section of Article
V which gives the Beneficiary the most valuable accrued benefit the
Participant would have been entitled to as of the date of death.
(b) Time and Form of Payment. The survivor benefit shall be paid to
the Beneficiary in the basic form provided below unless the Participant
elects an alternative form in the Form of Payment Designation. Any
alternative form shall be the Actuarial Equivalent of the basic form of
benefit payment. All payments shall be made on the date(s) the
Participant would have received payment under Article V, assuming the
Participant retired or terminated on the date of death. The basic and
alternative forms of payment are as follows:
(i) Basic Form of Benefit Payment. A lump sum payment.
(ii) Alternative Forms of Payment. Equal monthly installments
of the benefit over a period certain of sixty (60) or one hundred
twenty (120) months.
4.2 Posttermination Survivor Benefit
(a) Death Prior to Commencement of Benefits. If a Participant dies
following termination of employment with Employer and prior to the
commencement of benefits hereunder, Employer shall pay a survivor
benefit to the Participant's Beneficiary as follows:
(i) Amount. The amount of the survivor benefit shall be equal
to the Actuarial Equivalent lump sum present value of the
Participant's Supplemental Retirement Benefit determined under the
section of Article V which gives the Beneficiary the most valuable
accrued benefit the Participant would have been entitled to as of
the date of death.
(ii) Time and Form of Payment. The survivor benefit shall be
paid to the Beneficiary in the basic form provided below unless the
Participant elects an alternative form in the Form of Payment
Designation. Any alternative form shall be the Actuarial Equivalent
of the basic form of benefit payment. All payments shall be made on
the date(s) the Participant would have received payment under
Article V, assuming the Participant retired or terminated on the
date of death. The basic and alternative forms of payment are as
follows:
a) Basic Form of Benefit Payment. A lump sum payment.
b) Alternative Forms of Payment. Equal monthly
installments of the benefit over a period certain of sixty
(60) or one hundred twenty (120) months.
(b) Death After Commencement of Benefits. If a Participant dies
following the Participant's termination of employment with Employer and
after payments have commenced, a survivor benefit will be paid only if,
and to the extent, provided for under Section 5.6.
4.3 Suicide; Misrepresentation
No benefit shall be paid to a Beneficiary if the Participant's death
occurs as a result of suicide during the twelve (12) calendar months beginning
with the calendar month following commencement of participation in this Plan.
The Committee may deny payment if death occurs within twenty-four (24) months
beginning with the calendar month following commencement of participation in
this Plan if the Participant has made a material misrepresentation in any form
or document provided by the Participant to or for the benefit of Employer.
ARTICLE V--SUPPLEMENTAL RETIREMENT BENEFIT
5.1 Normal Retirement Benefit
If a Participant retires at a Normal Retirement Date, Employer shall pay
to the Participant a Supplemental Retirement Benefit equal to the Target Amount,
less:
(a) Fifty percent (50%) of the Participant's monthly primary Social
Security benefit payable at Retirement; and
(b) The Qualified Plan Offset at Retirement.
5.2 Early Retirement Benefit
If a Participant retires at an Early Retirement Date, Employer shall pay
to the Participant the monthly Supplemental Retirement Benefit calculated under
Section 5.1 except:
(a) Any bonus amounts which are treated as Compensation shall be
reduced by five-sixths percent (5/6%) for each month by which the
Participant's Early Retirement Date precedes the Participant's Normal
Retirement Date;
(b) The Target Amount shall be reduced by five-twelfths percent
(5/12%) for each month by which the Participant's Early Retirement Date
precedes the Participant's Normal Retirement Date;
(c) The offset required by Section 5.1(a) shall only reduce the
Participant's Supplemental Retirement Benefit commencing with the Normal
Retirement Date. The offset shall be determined at Retirement using the
Social Security Act in effect at Retirement and assuming zero (0) future
earnings from the Participant's Early Retirement Date to the
Participant's Normal Retirement Date; and
(d) The offset required by Section 5.1(b) shall be the amount
payable at the Early Retirement Date.
5.3 Termination Benefit
If a Participant terminates employment with Employer prior to
Retirement, death or Disability, Employer shall pay to the Participant a
Supplemental Retirement Benefit equal to the Termination Target Amount, less:
(a) Fifty percent (50%) of the Participant's monthly primary Social
Security benefit payable at the Participant's Normal Retirement Date.
This offset shall be determined at termination using the Social Security
Act in effect at termination and assuming earnings from the date of
termination to the Participant's Normal Retirement Date are equal to the
Participant's Salary at termination; and
(b)The Qualified Plan Offset at the Participant's Normal Retirement Date.
5.4 Disability Retirement Benefit
If a Participant terminates employment prior to Retirement as a result
of Disability, Employer shall pay to the Participant the monthly Supplemental
Retirement Benefit calculated under Section 5.1 or 5.2, whichever is applicable,
except that Years of Service and Years of Credited Service shall continue to
accrue during the period of Disability up to the date of actual Retirement. For
purposes of determining Final Average Compensation under this section, the
Participant shall be deemed to have earned an amount equal to Final Annual
Compensation during each year the Disability continues.
5.5 Form of Benefit Payment
The Supplemental Retirement Benefit under Sections 5.1, 5.2, 5.3 and 5.4
shall be paid in the basic form provided below unless the Participant elects an
alternative form in the Form of Payment Designation. Any alternative form shall
be the Actuarial Equivalent of the basic form of benefit payment. The basic and
alternative forms of payment are as follows:
(a) Basic Form of Benefit Payment. A monthly single life annuity
for the Participant's life.
(b) Alternative Forms of Benefit Payment.
(i) A lump sum payment.
(ii) A monthly joint and survivor annuity with payment
continued to the survivor at one hundred percent (100%) or fifty
percent (50%) of the amount paid to the Participant.
(iii) Equal monthly installments of the benefit over a period
certain of sixty (60), one hundred twenty (120) or one hundred
eighty (180) months.
5.6 Commencement of Benefit Payments
Benefits payable to a Participant under Sections 5.1, 5.2 and 5.4 as a
result of Normal or Early Retirement shall commence as soon as practicable after
the appropriate application for benefits has been made but not later than sixty
(60) days after all information necessary to calculate the benefit amount has
been received by Employer. Benefits payable to a Participant under Section 5.3
as a result of termination shall commence on the first day of the month
coincident with or following the date on which the Participant attains age
sixty-two (62). All payments shall be made as of the last day of the month.
5.7 Withholding; Payroll Taxes
Employer shall withhold from payments hereunder any taxes required to be
withheld from such payments under federal, state or local law. A Beneficiary,
however, may elect not to have withholding of federal income tax pursuant to
Section 3405(a)(2) of the Internal Revenue Code, or any successor provision
thereto.
5.8 Payment to Guardian
If a Plan benefit is payable to a minor or a person declared incompetent
or to a person incapable of handling the disposition of property, the Committee
may direct payment to the guardian, legal representative or person having the
care and custody of such minor, incompetent or person. The Committee may require
proof of incompetency, minority, incapacity or guardianship as it may deem
appropriate prior to distribution. Such distribution shall completely discharge
the Committee and Employer from all liability with respect to such benefit.
ARTICLE VI--BENEFICIARY DESIGNATION
6.1 Beneficiary Designation
Each Participant shall have the right, at any time, to designate one (1)
or more persons or an entity as Beneficiary (both primary as well as secondary)
to whom benefits under this Plan shall be paid in the event of a Participant's
death prior to complete distribution to the Participant of the benefits due
under the Plan. Each Beneficiary designation shall be in a written form
prescribed by the Committee and will be effective only when filed with the
Committee during the Participant's lifetime. Designation by a married
Participant of a Beneficiary other than the Participant's spouse shall not be
effective without spousal execution of a written consent acknowledging the
effect of the designation, unless such consent cannot be obtained because the
spouse cannot be located.
6.2 Changing Beneficiary
Any Beneficiary designation may be changed by an unmarried Participant
without the consent of the previously named Beneficiary by the filing of a new
designation with the Committee. A married Participant's Beneficiary designation
may be changed with the consent of the Participant's spouse as provided for in
Section 6.1 by the filing of a new designation with the Committee. The filing of
a new designation shall cancel all designations previously filed.
6.3 Change in Marital Status
If the Participant's marital status changes after the Participant has
designated a Beneficiary, the following shall apply:
(a) If the Participant is married at death but was unmarried when
the designation was made, the designation shall be void unless the
spouse has consented to it in the manner prescribed above.
(b) If the Participant is unmarried at death but was married when
the designation was made:
(i) The designation shall be void if the spouse was named as
Beneficiary.
(ii) The designation shall remain valid if a nonspouse
Beneficiary was named.
(c) If the Participant was married when the designation was made and
is married to a different spouse at death, the designation shall be void
unless the new spouse has consented to it in the manner prescribed
above.
6.4 No Beneficiary Designation
If any Participant fails to designate a Beneficiary in the manner
provided above, if the designation is void, or if the Beneficiary designated by
a deceased Participant dies before the Participant or before complete
distribution of the Participant's benefits, the Participant's Beneficiary shall
be the person in the first of the following classes in which there is a
survivor:
(a) The Participant's surviving spouse;
(b) The Participant's children in equal shares, except that if any
of the children predeceases the Participant but leave issue surviving,
then such issue shall take by right of representation the share the
parent would have taken if living;
(c) The Participant's estate.
6.5 Effect of Payment
Payment to the Beneficiary shall completely discharge the Employer's
obligations under this Plan.
ARTICLE VII--ADMINISTRATION
7.1 Committee; Duties
The 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 the Plan and decide or resolve any and
all questions, including interpretations of the Plan, as may arise in such
administration. Members of the Committee may be Participants under the Plan.
7.2 Agents
The Committee may, from time to time, employ 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.
7.3 Binding Effect of Decisions
The decision or action of the Committee with respect to any question
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, conclusive and binding upon all persons having any interest in
the Plan.
7.4 Indemnity of Committee
The Company shall indemnify and hold harmless the members of the
Committee against any and all claims, loss, damage, expense or liability arising
from any action or failure to act with respect to the Plan on account of such
member's service on the Committee, except in the case of gross negligence or
willful misconduct.
ARTICLE VIII--CLAIMS PROCEDURE
8.1 Claim
Any person claiming a benefit, requesting an interpretation or ruling
under the Plan, or requesting information under the Plan shall present the
request in writing to the Committee which shall respond in writing as soon as
practicable.
8.2 Denial of Claim
If the claim or request is denied, the written notice of denial shall
state:
(a) The reason for denial, with specific reference to the Plan
provisions on which the denial is based.
(b) A description of any additional material or information required
and an explanation of why it is necessary.
(c) An explanation of the Plan's claims review procedure.
8.3 Review of Claim
Any person whose claim or request is denied or who has not received a
response within thirty (30) days may request a review by notice given in writing
to the Committee. The claim or request shall be reviewed by the Committee which
may, but shall not be required to, grant the claimant a hearing. On review, the
claimant may have representation, examine pertinent documents, and submit issues
and comments in writing.
8.4 Final Decision
The decision on review shall normally be made within sixty (60) days. If
an extension of time is required for a hearing or other special circumstances,
the claimant shall be notified and the time shall be one hundred twenty (120)
days. The decision shall be in writing and shall state the reason and the
relevant Plan provisions. All decisions on review shall be final and bind all
parties concerned.
ARTICLE IX--TERMINATION, SUSPENSION OR AMENDMENT
9.1 Termination, Suspension or Amendment of Plan
The Board may, in its sole discretion, terminate or suspend the Plan at
any time, in whole or in part. The Board may amend the Plan at any time. Any
amendment may provide different benefits or amounts of benefits from those
herein set forth. No such termination, suspension or amendment, however, shall
adversely affect the accrued benefits of Participants (determined as of the day
prior to such action), the benefits of any Participant who has previously
retired, or the benefits of any Beneficiary of a Participant who has previously
died, except as otherwise determined by the Board under Section 10.1 with
respect to any Participant. Furthermore, no suspension or amendment shall alter
the applicability of the vesting schedule in Section 3.3 with respect to a
Participant's accrued benefit at the time of such suspension or amendment. Upon
termination of the Plan, however, all Participants shall be one hundred percent
(100%) vested in their accrued Supplemental Retirement Benefits.
ARTICLE X--MISCELLANEOUS
10.1 Unfunded Plan
This Plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of "management or highly-compensated
employees" within the meaning of Sections 201, 301, and 401 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and therefore is
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly,
the Board may terminate the Plan and make no further benefit payments or remove
certain employees as Participants if it is determined by the United States
Department of Labor, a court of competent jurisdiction, or an opinion of counsel
that the Plan constitutes an employee pension benefit plan within the meaning of
Section 3(2) of ERISA (as currently in effect or hereafter amended) which is not
so exempt.
10.2 Unsecured General Creditor
Participants and their Beneficiaries, heirs, successors, and assigns
shall have no secured legal or equitable rights, interest or claims in any
property or assets of Employer, nor shall they be Beneficiaries of, or have any
rights, claims or interests in any life insurance policies, annuity contracts or
the proceeds therefrom owned or which may be acquired by Employer. Except as
provided in Section 10.3, such policies, annuity contracts or other assets of
Employer shall not be held under any trust for the benefit of Participants,
their Beneficiaries, heirs, successors or assigns, or held in any way as
collateral security for the fulfilling of the obligations of Employer under this
Plan. Any and all of Employer's assets and policies shall be, and remain, the
general, unpledged, unrestricted assets of Employer. Employer's obligation under
the Plan shall be that of an unfunded and unsecured promise to pay money in the
future.
10.3 Trust Fund
Employer shall be responsible for the payment of all benefits provided
under the Plan. At its discretion, Employer may establish one (1) or more
trusts, with such trustees as the Board may approve, for the purpose of
providing for the payment of such benefits. Although such a trust shall be
irrevocable, its assets shall be held for payment of all Employer's general
creditors in the event of insolvency. To the extent any benefits provided under
the Plan are paid from any such trust, Employer shall have no further obligation
to pay them. If not paid from the trust, such benefits shall remain the
obligation of Employer.
10.4 Nonassignability
Neither a Participant nor any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate or convey in advance of actual receipt the
amounts, if any, payable hereunder, or any part thereof, which are, and all
rights to which are, expressly declared to be unassignable and nontransferable.
No part of the amounts payable shall, prior to actual payment, be subject to
seizure or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by a Participant or any other person, nor be
transferable by operation of law in the event of a Participant's or any other
person's bankruptcy or insolvency.
10.5 Not a Contract of Employment
This Plan shall not constitute a contract of employment between Employer
and the Participant. Nothing in this Plan shall give a Participant the right to
be retained in the service of Employer or to interfere with the right of
Employer to discipline or discharge a Participant at any time.
10.6 Protective Provisions
A Participant shall cooperate with Employer by furnishing any and all
information requested by Employer in order to facilitate the payment of benefits
hereunder, and by taking such physical examinations as Employer may deem
necessary and by taking such other action as may be requested by Employer.
10.7 Governing Law
The provisions of this Plan shall be construed and interpreted according
to the laws of the State of Colorado, except as preempted by federal law.
10.8 Validity
If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but this Plan shall be construed and enforced as if such illegal and
invalid provision had never been inserted herein.
10.9 Notice
Any notice or filing required or permitted under the Plan shall be
sufficient if in writing and hand delivered or sent by registered or certified
mail. Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the receipt
for registration or certification. Mailed notice to the Committee shall be
directed to the Company's address. Mailed notice to a Participant or Beneficiary
shall be directed to the individual's last known address in Employer's records.
10.10 Successors
The provisions of this Plan shall bind and inure to the benefit of
Employer and its successors and assigns. The term successors as used herein
shall include any corporate or other business entity which shall, whether by
merger, consolidation, purchase or otherwise acquire all or substantially all of
the business and assets of Employer, and successors of any such corporation or
other business entity.