Exhibit 10.4
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS INDENTURE is made on the 21st day of January, 2008, by Silgan
Containers Corporation, a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter called the "Primary Sponsor").
INTRODUCTION
------------
The Primary Sponsor maintains the Silgan Containers Corporation
Supplemental Executive Retirement Plan (the "Plan"), which is intended to
benefit only a select group of management or highly compensated employees within
the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and any
regulations relating thereto.
The Primary Sponsor has determined that employees hired or rehired on or
after January 1, 2007 shall not be eligible for the supplemental pension portion
of the Plan, consistent with the exclusion of those employees from the Pension
Plan (as defined in the Plan). The Primary Sponsor has determined that the Plan
previously adopted by the Primary Sponsor needs to be amended in certain other
respects, including to conform to the requirements of Code Section 409A and the
applicable guidance thereunder. Therefore, the Primary Sponsor declares that the
Plan is amended and restated in its entirety effective January 1, 2007, except
as otherwise provided herein, to read as follows:
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE 1 DEFINITIONS........................................................1
ARTICLE 2 ELIGIBILITY AND DEFERRAL ELECTIONS.................................6
ARTICLE 3 CONTRIBUTIONS......................................................7
ARTICLE 4 INDIVIDUAL FUNDS AND INVESTMENTS...................................8
ARTICLE 5 WITHDRAWALS DURING EMPLOYMENT......................................9
ARTICLE 6 GENERAL RULES ON DISTRIBUTIONS.....................................9
ARTICLE 7 ADMINISTRATION OF THE PLAN........................................12
ARTICLE 8 CLAIMS REVIEW PROCEDURE...........................................13
ARTICLE 9 INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS....................15
ARTICLE 10 LIMITATION OF RIGHTS..............................................16
ARTICLE 11 AMENDMENT TO OR TERMINATION OF THE PLAN AND THE TRUST.............16
ARTICLE 1
DEFINITIONS
-----------
Wherever used herein, the masculine pronoun shall be deemed to include the
feminine, and the singular to include the plural, unless the context clearly
indicates otherwise and the following words and phrases shall, when used herein,
have the meanings set forth below:
1.1 "Account" means a Participant's aggregate balance in the following
-------
accounts, as adjusted pursuant to the Plan as of any given date:
(a) "Deferral Contribution Account" which shall reflect a
---------------------------------
Participant's interest in contributions made by a Plan Sponsor under
Section 3.1.
(b) "Matching Account" which shall reflect a Participant's interest in
----------------
matching contributions made by a Plan Sponsor under Section 3.2.
(c) "DISP Make-up Account" which shall reflect a Participant's
----------------------
interest in contributions made by a Plan Sponsor under Section 3.3.
(d) "Supplemental Pension Account" which shall reflect a Participant's
----------------------------
interest in contributions made by a Plan Sponsor under Section 3.4.
1.2 "Affiliate" means:
---------
(a) any corporation which is a member of the same controlled group of
corporations (within the meaning of Code Section 414(b)) as is a Plan
Sponsor; and
(b) any other trade or business (whether or not incorporated) under
common control (within the meaning of Code Section 414(c)) with a Plan
Sponsor.
1.3 "Annual Compensation" means "Compensation" as defined from time to time
-------------------
in the Pension Plan, except that
(a) Annual Compensation shall be determined without consideration of
the Annual Compensation Limit and before any Deferral Contributions made
under this Plan; and
(b) Annual Compensation shall include amounts paid by an Affiliate.
1.4 "Annual Compensation Limit" means $225,000 ($230,000 for 2008), which
---------------------------
amount may be adjusted in subsequent Plan Years based on changes in the cost of
living as announced by the Secretary of the Treasury.
1.5 "Beneficiary" means the person or trust that a Participant designated
-----------
most recently in writing to the Plan Administrator; provided, however, that if
the Participant has failed to make a designation, no person designated is alive
at the date of the Participant's death, no trust
1
has been established, or no successor Beneficiary has been designated who is
alive, the term "Beneficiary" means:
(a) the Participant's spouse; or
(b) if no spouse is alive at the date of the Participant's death, the
Participant's children, per stirpes; or
(c) if no children or none of the children's issue are alive at the
date of the Participant's death, the Participant's estate.
A Participant may change his designation at any time. If, subsequent to the
death of a Participant, the Participant's Beneficiary dies while entitled to
receive benefits under the Plan, the successor Beneficiary, if any, or the
Beneficiary listed under Subsection (a) or, if no spouse is alive, Subsection
(b) or, if no children (or children's issue) are alive, Subsection (c) shall be
the Beneficiary.
1.6 "Board of Directors" means the Board of Directors of the Primary
Sponsor. --------------------
1.7 "Change in Control" means, solely with regard to Silgan Holdings,
-----------------
Inc., one of the following:
(a) a "change in ownership of a corporation" as defined, and subject
to the limitations, in Code Section 409A and the regulations and related
guidance thereunder;
(b) a "change in effective control of a corporation" as defined, and
subject to the limitations, in Code Section 409A and the regulations and
related guidance thereunder; or
(c) a "change in ownership of a substantial portion of a corporation's
assets" as defined, and subject to the limitations, in Code Section 409A
and the regulations and related guidance thereunder, but substituting
"eighty-five percent (85%)" for the phrase "40 percent" in Treasury
Regulation Section 1.409A-3(i)(5)(vii)(A), or any successor thereto.
Notwithstanding the foregoing, no Change in Control shall be deemed to have
occurred with respect to a particular Eligible Employee by reason of any actions
or events in which the Eligible Employee participates in a capacity other than
in the Eligible Employee's capacity as an employee or director of the Primary
Sponsor or an Affiliate or as a shareholder of the Primary Sponsor or an
Affiliate solely exercising the Eligible Employee's voting or tendering rights.
1.8 "Code" means the Internal Revenue Code of 1986, as amended.
----
1.9 "Deferral Contribution" means a contribution of a Plan Sponsor on
----------------------
behalf of a Participant pursuant to Section 3.1 equal to a percentage or dollar
amount of an Eligible Employee's Eligible Compensation that is not yet payable.
2
1.10 "Deferral Election" means an Eligible Employee's election under
------------------
Section 2.2 that is made during an Election Period to have a Deferral
Contribution made to his Account.
1.11 "DISP Compensation" means "Annual Compensation" as defined from time
-----------------
to time in the Savings Plan, except that
(a) DISP Compensation shall be determined without consideration of the
Annual Compensation Limit; and
(b) solely for purposes of calculating DISP Make-up Contributions for
Plan Years ending before January 1, 2006, DISP Compensation shall include
any bonus paid under the Primary Sponsor's Performance Incentive Program
and any bonus paid under the bonus program for senior executives of Silgan
Holdings, Inc.
1.12 "DISP Make-up Contribution" means a profit sharing contribution made
--------------------------
pursuant to Section 3.3.
1.13 "Election Period" means
---------------
(a) with respect to contributions for the Plan Year in which an
Eligible Employee becomes initially eligible to participate in the Plan,
the thirty (30)-day period commencing with the date an Eligible Employee
first becomes eligible to participate in the Plan; provided that such
Eligible Employee has not, for a period of at least twenty-four (24) months
prior to such initial eligibility, been eligible to participate in the Plan
or in any other plan of the Employer Group (other than accruing earnings
under the Plan or such plan) that
(1) with respect to the Deferral Contribution portion of the
Plan, is an Account Balance Plan that provides for deferrals of
compensation at the election of the Eligible Employee; and
(2) with respect to the Matching Contribution portion, the DISP
Make-up Contribution portion, and the Supplemental Pension Portion of
the Plan, is an Account Balance Plan that provides for deferrals of
compensation other than at the election of the Eligible Employee.
For this purpose, an "Account Balance Plan" means plan described in
Treasury Regulation Section 1.409A-1(c)(2)(A).
(b) with respect to contribution for any other Plan Year, the period
ending before the beginning of such Plan Year as prescribed by the Plan
Administrator.
1.14 "Eligible Compensation" means that portion of a Participant's
-----------------------
compensation that is in excess of the Annual Compensation Limit, that is
otherwise payable to him for a Plan Year, and that consists of:
3
(a) his base salary;
(b) any bonus paid under the Primary Sponsor's Performance Incentive
Program; and
(c) any bonus paid under the bonus program for senior executives of
Silgan Holdings, Inc.
1.15 "Eligible Employee" means a common law employee of a Plan Sponsor or
------------------
an Affiliate who:
(a) is an officer of a Plan Sponsor or Silgan Holdings, Inc.;
(b) is projected, based on his rate of base pay and projected bonus as
of January 1 of a Plan Year, to have Annual Compensation in excess of the
Annual Compensation Limit (without regard to whether such employee's Annual
Compensation exceeds such Annual Compensation Limit);
(c) is determined by the Plan Administrator in its sole discretion to
be a member of a select group of management or highly compensated employees
of that Plan Sponsor within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, and any regulations relating thereto; and
(d) was both employed by the Primary Sponsor and a Participant in this
Plan on January 1, 2007 or, thereafter is designated as an Eligible
Employee by the Board of Directors.
1.16 "Employer Group" means the Primary Sponsor and each Affiliate, except
--------------
that in applying Internal Revenue Code Section 1563(a)(1), (2) and (3), "at
least 50 percent" is used instead of "at least 80 percent."
1.17 "ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended.
1.18 "Normal Retirement Age" means the earlier of:
---------------------------
(a) the attainment of at least age sixty (60) with the completion of
ten (10) or more Periods of Service; or
(b) the attainment of at least age sixty-five (65) with the completion
of five (5) or more Periods of Service.
1.19 "Participant" means any Eligible Employee or former Eligible Employee
-----------
who has become a participant in the Plan for so long as his Account balance has
not been fully distributed pursuant to the Plan.
1.20 "Pension Plan" means the Silgan Containers Corporation Pension Plan
------------
for Salaried Employees.
4
1.21 "Period of Service" means "Period of Service" as defined in the
-------------------
Pension Plan.
1.22 "Plan Administrator" means the organization or person designated by
-------------------
the Primary Sponsor to administer the Plan and, in lieu of any such designation,
means the Primary Sponsor.
1.23 "Plan Sponsor" means the Primary Sponsor.
------------
1.24 "Plan Sponsor Contributions" means Deferral Contributions, DISP
----------------------------
Make-up Contributions, Matching Contributions, and Supplemental Pension
Contributions.
1.25 "Plan Year" means the calendar year.
---------
1.26 "Savings Plan" means the Silgan Containers Retirement Savings Plan.
------------
1.27 "Separation from Service" means a termination of employment of the
------------------------
Participant from the Employer Group. Notwithstanding the foregoing, the
employment relationship of a Participant with an Employer Group is considered to
remain intact while the individual is on military leave, sick leave or other
bona fide leave of absence if there is a reasonable expectation that the
Participant will return to perform services for a member of the Employer Group
and the period of such leave does not exceed six months, or if longer, so long
as the individual retains a right to reemployment with any member of the
Employer Group under applicable law or contract. Whether a Participant has
terminated employment with the Employer Group will be determined by the Plan
Administrator based on whether it is reasonably anticipated by the Plan Sponsor
and the Participant that the Participant will permanently cease providing
services to any member of the Employer Group, whether as a Participant or
independent contractor, or that the services to be performed, whether as a
Participant or independent contractor, by the Participant will permanently
decrease to no more than 20% of the average level of bona fide services
performed, whether as a Participant or independent contractor, over the
immediately preceding 36-month period or such shorter period during which the
Participant was performing services for the Employer Group. If a leave of
absence occurs during such 36-month or shorter period which is not considered a
Separation from Service, unpaid leaves of absence shall be disregarded and the
level of services provided during any paid leave of absence shall be presumed to
be the level of services required to receive the compensation paid with respect
to such leave of absence. Transfer of a Participant from the Plan Sponsor or an
Affiliate to another Affiliate shall not be deemed for any purpose under the
Plan to be a Separation from Service.
1.28 "Supplemental Pension Contributions" means contributions made pursuant
----------------------------------
to Section 3.4 hereof.
1.29 "Supplemental Pension Portion" means the portion of the Plan under
------------------------------
which certain Participants receive Supplemental Pension Contributions.
1.30 "Trust Agreement" means the agreement between the Primary Sponsor and
----------------
the Trustee establishing the Trust.
5
1.31 "Trust" means the Silgan Containers Corporation Supplemental Executive
-----
Retirement Trust, a grantor trust.
1.32 "Trustee" means the trustee under the Trust.
-------
1.33 "Unforeseeable Emergency" means a severe financial hardship arising
------------------------
from illness or accident of the Participant or his spouse or dependents,
casualty loss or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond control of the Participant. In order to
satisfy the criteria for an "Unforeseeable Emergency" the financial need must
not be one that can be relieved through reimbursement or compensation from
insurance or otherwise or by liquation of the Participant's assets, to the
extent the liquidation of such assets would not cause severe financial hardship.
ARTICLE 2
ELIGIBILITY AND DEFERRAL ELECTIONS
----------------------------------
2.1 Supplemental Pension Portion. Each Eligible Employee who was a
------------------------------
Participant in the Supplemental Pension Portion as of December 31, 2006 shall
continue to be a Participant in the Supplemental Pension Portion until the
earlier of (a) his termination of employment with all members of the Employer
Group or (b) the date he is no longer an Eligible Employee. No individual hired
or rehired by the Employer Group on or after January 1, 2007 will be eligible to
participate in the Supplemental Pension Portion.
2.2 Eligibility for Deferral Contribution Portion; Elections to Make
---------------------------------------------------------------------------
Deferral Contributions.
- ----------------------
(a) Deferral Election. Each Eligible Employee may elect to make a
------------------
Deferral Contribution to the Plan by filing with the Plan Administrator a
Deferral Election that conforms to the requirements of this Section 2.2, in
such form and manner as designated by the Plan Administrator, no later than
the last day of his Election Period.
(b) Duration of Deferral Election.
-----------------------------
(1) Except as provided in this Subsection (b), any Deferral
Election for all or a portion of a Plan Year shall be irrevocable
during such Plan Year. Furthermore, any such Deferral Election shall
continue to apply to all Eligible Compensation earned for Plan Years
after such election is made until the Participant revokes or changes
his Deferral Election in accordance with the terms of the Plan.
(2) A Participant's Deferral Election shall be revoked upon a
Participant receiving a hardship distribution under the Savings Plan.
Such Participant may not again make Deferral Contributions to this
Plan until the Plan Year following the end of the Minimum Suspension
Period. The "Minimum Suspension Period" is the six (6) month period
beginning on the date of the hardship distribution.
6
(3) A Participant's Deferral Election shall be revoked upon a
Participant demonstrating to the Plan Administrator in such form an
manner as my be specified by the Plan Administrator from time to time
that he is suffering from an Unforeseeable Emergency. Such Participant
may not again make Deferral Contributions to this Plan until the Plan
Year following the Plan Year in which Deferral Contributions cease
under this Plan Section 2.2(b)(3).
2.3 Loss of Eligibility. If a Participant is no longer an Eligible
---------------------
Employee, such Participant shall have his Deferral Election revoked as of the
earlier of (a) his termination of employment with all members of the Employer
Group or (b) the first day of the Plan Year following the Plan Year in which he
is no longer an Eligible Employee. No DISP Make-up Contributions, Matching
Contributions, or Supplemental Pension Contributions shall be made to a
Participant's Account during any period during which he is not an Eligible
Employee.
ARTICLE 3
CONTRIBUTIONS
-------------
3.1 Deferral Contributions. The Plan Sponsor shall make a contribution to
-----------------------
the Deferral Contribution Account of a Participant who is an Eligible Employee
in accordance with his Deferral Election. The Deferral Contribution made
pursuant to an Eligible Employee's Deferral Election under this Section 3.1
shall be in an amount equal to the amount specified in the Deferral Election,
but not greater than six percent (6%) of the Eligible Employee's Eligible
Compensation. A contribution made pursuant to this Section 3.1 shall be
allocated to the Deferral Contribution Account of the Participant on whose
behalf it was made as soon as reasonably practicable following the date of
withholding by the Plan Sponsor.
3.2 Matching Contributions. The Plan Sponsor proposes to make contributions
----------------------
to the Matching Account for each Plan Year for each Participant who is an
Eligible Employee during the Plan Year in an amount equal to fifty percent (50%)
of the contribution made for the Plan Year on behalf of a Participant pursuant
to Section 3.1. The Plan Sponsor contributions made on behalf of each
Participant under this Section 3.2 shall be allocated to the Matching Account of
the Participant on behalf of whom the contribution was made.
3.3 DISP Make-up Contributions. The Plan Sponsor may make DISP Make-up
----------------------------
Contributions to the DISP Make-up Account for each Plan Year for each
Participant who is an Eligible Employee during the Plan Year and who is entitled
to a "DISP Contribution" (as defined in the Savings Plan) under the Savings Plan
for such Plan Year. The amount of the DISP Make-up Contribution shall be a
percentage of DISP Compensation equal to the percentage of "Annual Compensation"
(as defined in the Savings Plan) used to calculate the "DISP Contribution" (as
defined in the Savings Plan) under the Section 3.3 of the Savings Plan (or any
successor thereto), less the amount of the "DISP Contribution" (as defined in
the Savings Plan) actually made to such Participant's account under the Savings
Plan. DISP Make-up Contributions for each Participant entitled thereto shall be
allocated, as of the last day of each Plan Year that such contribution is made,
to the DISP Make-up Account of each such Participant.
7
3.4 Supplemental Pension Contributions. The Plan Sponsor shall make
------------------------------------
Supplemental Pension Contributions to the Supplemental Pension Account of each
Participant in the Supplemental Pension Portion who is an Eligible Employee in
an amount equal to the yearly contribution using a level individual aggregate
funding method, without adjusting for changes in asset values or gains or
losses, which would be expected to fund a pension benefit commencing at a
Participant's sixty-third (63rd) birthday equal to:
(a) the Participant's projected normal retirement benefit under the
Pension Plan calculated using the Participant's "Final Average Rate of
Compensation" (as defined in the Pension Plan) without regard to (i) the
"Final Average Cap" (as defined in the Pension Plan), (ii) the Annual
Compensation Limit, and (iii) the limitation imposed by Code Section
415(b); less
(b) the Participant's projected normal retirement benefit under the
Pension Plan;
Notwithstanding the foregoing or the definition of "Compensation" in the Pension
Plan, for purposes of determining the portion of the Participant's projected
normal retirement benefit in Section 3.4(a) above, for Periods of Service ending
before January 1, 2006, a Participant's "Final Average Rate of Compensation"
shall be determined as if bonuses paid under the Primary Sponsor's Performance
Incentive Program and bonuses paid under the bonus program for senior executives
of Silgan Holdings, Inc. were not excluded from the definition of "Compensation"
in the Pension Plan.
ARTICLE 4
INDIVIDUAL FUNDS AND INVESTMENTS
--------------------------------
4.1 Participant Direction of Contributions. Until such time as the Plan
----------------------------------------
Administrator may direct otherwise, each Participant and each Beneficiary of a
deceased Participant may direct the Plan Administrator to invest contributions
to his Account in one or more notional investment options chosen by the Plan
Administrator as the Participant shall designate by providing notice to the Plan
Administrator according to the procedures established by the Plan Administrator
for that purpose.
(a) All investment directions, or changes in investment directions, of
contributions shall be made in accordance with the procedures established
by the Plan Administrator. New investment directions shall be effective as
of the date that such directions are processed by the Plan Administrator in
accordance with the procedures established for such purpose.
(b) An investment direction, once given, shall be deemed to be a
continuing direction until changed as otherwise provided herein. If no
direction is effective for the date a contribution is to be made, all
contributions which are to be made for such date shall be invested in such
individual fund as the Plan Administrator or the Trustee, as applicable,
may determine. Neither the Trustee nor any Plan Sponsor, employee of a
8
Plan Sponsor, nor the Plan Administrator shall be liable for any loss,
which results from a Participant's exercise or failure to exercise his
investment election.
4.2 Participant Directions to Transfer between Notional Investment Options.
----------------------------------------------------------------------
A Participant may elect, according to the procedures established by the Plan
Administrator, to transfer the investment of his Account among the notional
investment options chosen by the Plan Administrator. An election under this
Section 4.2 shall be effective as of the date that such directions are processed
by the Plan Administrator in accordance with the procedures established for such
purpose.
4.3 Application of Investment Directions. A Participant who makes an
---------------------------------------
election pursuant to Section 4.1 or Section 4.2 may apply the new investment
direction to his current Account, all future contributions, or both his current
Account and all future contributions.
4.4 Allocation of Income and Losses. As of each valuation date, the Trustee
-------------------------------
shall allocate net income or net loss to each Account at the same rate as the
rate of net income or net loss of the notional investment options in which the
Account is invested.
ARTICLE 5
WITHDRAWALS DURING EMPLOYMENT
-----------------------------
5.1 Unforeseeable Emergency Withdrawals. The Trustee shall, upon the
-------------------------------------
direction of the Plan Administrator, withdraw all or a portion of a
Participant's vested Accounts, prior to the time such account is otherwise
distributable in accordance with the other provisions of the Plan; provided,
however, that any such withdrawal shall be made only if the Participant or
Beneficiary, as applicable, demonstrates that he is suffering from an
Unforeseeable Emergency.
5.2 Unforeseeable Emergency Withdrawal Requirements. No distribution under
-----------------------------------------------
Section 5.1 shall be made to the extent that the severe financial hardship could
be alleviated:
(a) through reimbursement or compensation from insurance or otherwise;
(b) by liquidation of the Participant's assets (to the extent such
liquidation would not cause severe financial hardship); or
(c) by cessation of Deferral Contributions under Plan Section
2.2(b)(3).
ARTICLE 6
GENERAL RULES ON DISTRIBUTIONS
------------------------------
6.1 Payment on Separation from Service.
----------------------------------
(a) A Participant who has a Separation from Service shall commence
distribution of his vested Account within the thirty (30) day period which
begins on the sixth month anniversary of the date of the Participant's
Separation from Service. Such distribution shall be made:
9
(1) in the case of a Participant who has a Separation from
Service prior to his Normal Retirement Age, in a single lump sum
distribution;
(2) in the case of a Participant who has a Separation from
Service on or after his Normal Retirement Age, in the form or forms
elected by the Participant pursuant to Plan Section 6.2; or
(3) in the event a Participant who has a Separation from Service
on or after his Normal Retirement Age has failed to make an election
concerning the form of payment of such Participant's vested Account,
in a lump sum distribution.
(b) Notwithstanding Subsection (a), upon a Participant's death, all
vested benefits for such Participant under the Plan shall be paid to the
Participant's Beneficiary in one lump sum as soon as administratively
practicable, but no later than ninety (90) days, following the
Participant's death. If a Participant is receiving installment payments as
of the date of the payment under this Section, the remainder of such
installment payments will be paid in one lump sum.
6.2 Form of Payment Election.
------------------------
(a) During an Eligible Employee's initial Election Period, he may
elect, in such form and manner as determined by the Plan Administrator, one
of the forms of payment under Subsection (b) for his vested Account in the
event that his vested Account is distributed pursuant to Section 6.1(a)(2).
An election under this Subsection shall become irrevocable immediately
following such Election Period. With respect to an individual who ceases to
be an Eligible Employee and then again becomes an Eligible Employee, such
individual's first election under this Subsection shall apply.
(b) The Eligible Employee or Participant may elect pursuant to
Subsection (a) to receive payment of the vested portion of his Account upon
his Separation from Service on or after his attainment of Normal Retirement
Age in one of the following forms:
(1) A lump sum distribution;
(2) Substantially equal annual installments over five (5) years;
(3) Substantially equal annual installments over ten (10) years;
(4) Substantially equal annual installments over fifteen (15)
years; or
(5) Such other annual installment payment method to which the
Primary Sponsor consents;
provided, however, that each annual installment under Subsections (2) through
(5) shall be treated as a separate payment for purposes of Code Section 409A.
10
6.3 One-Time Permitted Change in the Form of Payment.
-------------------------------------------------------------------
(a) A Participant who has made an election under Section 6.2 for a
lump sum payment (or is deemed to have made an election under Section
6.1(a)(3)), with respect to payment of his vested Account under Section
6.1(a)(2) may elect to delay receipt of such lump sum payment for five (5)
years following the date such payment would have otherwise been made.
(b) A Participant who has made an election under Section 6.2 for
installment payments over five (5) or more years, with respect to the
payment of his vested Account under Section 6.1(a)(2) may elect to defer
receipt of the first, and only the first, such installment payment, which
shall then be paid in the year following the year in which the last
installment would, but for such election, have been otherwise payable.
(c) Any election under Subsection (a) or (b) of this Section shall be
subject to the following requirements:
(i) the election under this Plan Section 6.3 must not take effect
until twelve (12) months after the election is made;
(ii) the Participant must not have made a prior election under
this Section 6.3.
6.4 Special One-Time Election. Notwithstanding Sections 6.2 and 6.3, any
--------------------------
Participant who is an Eligible Employee and who had vested Account balance as of
January 1, 2007 may, at a time designated by the Plan Administrator that is not
later than December 31, 2008, make a special one-time change in his election
under Section 6.2. Such Participant may elect under this Section any form
provided in Section 6.2(b)(1) through (5); provided that
(a) no such election shall provide for payment of an amount in the
calendar year of such election (the "Election Year") that would not have
otherwise been paid in the Election Year pursuant to the Participant's
prior election; and
(b) no such election shall provide for payment of an amount in a
calendar year other than the Election Year that would have otherwise been
paid in the Election Year pursuant to the Participant's prior election.
6.5 Payment on Change in Control. Notwithstanding a prior election by a
-----------------------------
Participant as to a form of payment, upon a Change in Control, all vested
benefits for all Participants under the Plan shall be paid in lump sum
distributions as soon as administratively practicable, but no later than ninety
(90) days, following the Change in Control. If a Participant is receiving
installment payments as of the date of the payment under this Section, the
remainder of such installment payments will be paid in one lump sum.
6.6 Vesting. A Participant shall always be fully vested in contributions
-------
made to his Deferral Contribution Account. Contributions made to a Participant's
Matching Account, DISP Make-up Account, and Supplemental Pension Account shall
vest according to the following schedule:
11
Periods of Service Vested Percentage
------------------ -----------------
Less than 5 0%
5 or more 100%
ARTICLE 7
ADMINISTRATION OF THE PLAN
--------------------------
7.1 Unfunded Obligations. Participants and their Beneficiaries, heirs,
---------------------
successors, and assigns shall have no legal or equitable rights, claims, or
interest in any specific property or assets of any Plan Sponsor or, if
established, the Trust. Any and all of the assets of each Plan Sponsor and any
Trust assets which are attributable to amounts paid into the Trust by the Plan
Sponsor shall be, and remain, the general unpledged, unrestricted assets of such
Plan Sponsor, which shall be subject to the claims of that Plan Sponsor's
general creditors. Each Plan Sponsor's obligation under the Plan shall be merely
that of an unfunded and unsecured promise of the Plan Sponsor to pay money in
the future, and the rights of the Participants and Beneficiaries shall be no
greater than those of unsecured general creditors. It is the intention of the
Plan Sponsors that the Plan and, if established, the Trust be unfunded for
purposes of the Code and for purposes of Title I of ERISA. Nothing contained in
this Plan shall constitute a guaranty by a Plan Sponsor or any other entity that
the assets of the Plan Sponsor will be sufficient to pay any benefit hereunder.
7.2 Operation of the Plan Administrator. The Primary Sponsor shall appoint
-----------------------------------
a Plan Administrator. If an organization is appointed to serve as the Plan
Administrator, then the Plan Administrator may designate in writing one or more
persons who may act on behalf of the Plan Administrator. If more than one person
is so designated with respect to the same administrative function, a majority of
such persons shall constitute a quorum for the transaction of business and shall
have the full power to act on behalf of the Plan Administrator. The Primary
Sponsor shall have the right to remove the Plan Administrator at any time by
notice in writing. The Plan Administrator may resign at any time by written
notice of resignation to the Primary Sponsor. Upon removal or resignation of the
Plan Administrator, or in the event of the dissolution of the Plan
Administrator, the Primary Sponsor shall appoint a successor.
7.3 Duties of the Plan Administrator.
--------------------------------
(a) The Plan Administrator shall advise the Plan Sponsor with respect
to all payments under the terms of the Plan and shall direct the Plan
Sponsor in writing to make such payments; provided, however, in no event
shall the Plan Sponsor make such payments if the Plan Sponsor has actual
knowledge that such payments are contrary to the terms of the Plan.
(b) The Plan Administrator shall from time to time establish rules,
not contrary to the provisions of the Plan and the Trust, for the
administration of the Plan and the transaction of its business. All
elections and designations under the Plan by a Participant or Beneficiary
shall be made on forms prescribed by the Plan Administrator. The Plan
Administrator shall have discretionary authority to construe the terms of
the
12
Plan and shall determine all questions arising in the administration,
interpretation and application of the Plan, including, but not limited to,
those concerning eligibility for benefits and it shall not act so as to
discriminate in favor of any person. All determinations of the Plan
Administrator shall be conclusive and binding on all employees,
Participants, and Beneficiaries, subject to the provisions of the Plan and
the Trust and subject to applicable law.
(c) The statement of specific duties for a Plan Administrator in this
Section is not in derogation of any other duties which a Plan Administrator
has under the provisions of the Plan or the Trust or under applicable law.
7.4 Action by a Plan Sponsor. Any action to be taken by a Plan Sponsor
-------------------------
shall be taken by persons duly authorized by the Plan Sponsor, except, subject
to Sections 11.1 and 11.2, amendments to, termination of, or termination of a
Plan Sponsor participation in, the Plan or the Trust, or the determination of
the basis of any Plan Sponsor contributions, may be made only to the extent
authorized by written resolution or written direction of the board of directors
or appropriate governing body. Nothing herein shall be construed to prohibit the
board of directors or appropriate governing body from delegating to any officer
or other appropriate person of a Plan Sponsor the authority to take any such
actions as may be specified in such resolution or written direction.
ARTICLE 8
CLAIMS REVIEW PROCEDURE
-----------------------
8.1 Notice of Denial. If a Participant or a Beneficiary is denied a claim
----------------
for benefits under the Plan, the Plan Administrator shall provide to the
claimant written notice of the denial within ninety (90) days after the Plan
Administrator receives the claim, unless special circumstances require an
extension of time for processing the claim. If such an extension of time is
required, written notice of the extension shall be furnished to the claimant
prior to the termination of the initial 90-day period. In no event shall the
extension exceed a period of ninety (90) days from the end of such initial
period. Any extension notice shall indicate the special circumstances requiring
the extension of time, the date by which the Plan Administrator expects to
render the final decision, the standards on which entitlement to benefits are
based, the unresolved issues that prevent a decision on the claim and the
additional information needed to resolve those issues.
8.2 Contents of Notice of Denial. If a Participant or Beneficiary is denied
----------------------------
a claim for benefits under a Plan, the Plan Administrator shall provide to such
claimant written notice of the denial which shall set forth:
(a) the specific reasons for the denial;
(b) specific references to the pertinent provisions of the Plan on
which the denial is based;
13
(c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the Plan's claim review procedures, and the time
limits applicable to such procedures, including a statement of the
claimant's right to bring a civil action under Section 502(a) of ERISA
following an adverse benefit determination on review.
8.3 Right to Review. After receiving written notice of the denial of a
----------------
claim, a claimant or his representative shall be entitled to:
(a) request a full and fair review of the denial of the claim by
written application to the Plan Administrator;
(b) request, free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the claim;
(c) submit written comments, documents, records, and other information
relating to the denied claim to the Plan Administrator; and
(d) a review that takes into account all comments, documents, records,
and other information submitted by the claimant relating to the claim,
without regard to whether such information was submitted or considered in
the initial benefit determination.
8.4 Application for Review. If a claimant wishes a review of the decision
-----------------------
denying his claim to benefits under the Plan, he must submit the written
application to the Plan Administrator within sixty (60) days after receiving
written notice of the denial.
8.5 Hearing. Upon receiving a written application for review, the Plan
-------
Administrator, may schedule a hearing for purposes of reviewing the claimant's
claim, which hearing shall take place not more than thirty (30) days from the
date on which the Plan Administrator received such written application for
review.
8.6 Notice of Hearing. At least ten (10) days prior to the scheduled
-------------------
hearing, the claimant and his representative designated in writing by him, if
any, shall receive written notice of the date, time, and place of such scheduled
hearing. The claimant or his representative, if any, may request that the
hearing be rescheduled, for his convenience, on another reasonable date or at
another reasonable time or place.
8.7 Counsel. All claimants requesting a review of the decision denying
-------
their claim for benefits may employ counsel for purposes of the hearing.
8.8 Decision on Review. No later than sixty (60) days following the receipt
------------------
of the written application for review, the Plan Administrator shall submit its
decision on the review in
14
writing to the claimant involved and to his representative, if any, unless the
Plan Administrator determines that special circumstances (such as the need to
hold a hearing) require an extension of time, to a day no later than one hundred
twenty (120) days after the date of receipt of the written application for
review. If the Plan Administrator determines that the extension of time is
required, the Plan Administrator shall furnish to the claimant written notice of
the extension before the expiration of the initial sixty (60) day period. The
extension notice shall indicate the special circumstances requiring an extension
of time and the date by which the Plan Administrator expects to render its
decision on review. In the case of a decision adverse to the claimant, the Plan
Administrator shall provide to the claimant written notice of the denial which
shall include:
(a) the specific reasons for the decision;
(b) specific references to the pertinent provisions of the Plan on
which the decision is based;
(c) a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant's claim for
benefits; and
(d) an explanation of the Plan's claim review procedures, and the time
limits applicable to such procedures, including a statement of the
claimant's right to bring an action under Section 502(a) of ERISA following
the denial of the claim upon review.
ARTICLE 9
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS
----------------------------------------------
9.1 Anti-Alienation. No benefit which shall be payable under the Plan to
---------------
any person shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same shall be void; and no such benefit shall in any manner be liable for, or
subject to, the debts, contracts, liabilities, engagements or torts of any
person, nor shall it be subject to attachment or legal process for, or against,
such person, and the same shall not be recognized under the Plan, except to such
extent as may be required by law.
9.2 Minors and Incompetents. Whenever any benefit which shall be payable
------------------------
under the Plan is to be paid to or for the benefit of any person who is then a
minor or determined to be incompetent by qualified medical advice, the Plan
Administrator need not require the appointment of a guardian or custodian, but
shall be authorized to cause the same to be paid over to the person having
custody of such minor or incompetent, or to cause the same to be paid to such
minor or incompetent without the intervention of a guardian or custodian, or to
cause the same to be paid to a legal guardian or custodian of such minor or
incompetent if one has been appointed or to cause the same to be used for the
benefit of such minor or incompetent.
15
9.3 Missing Participants. If the Plan Administrator cannot ascertain the
---------------------
whereabouts of any Participant to whom a payment is due under the Plan, the Plan
Administrator may direct that the payment and all remaining payments otherwise
due to the Participant be cancelled on the records of the Plan and Trust and the
amount thereof applied as a forfeiture in accordance with Plan provisions except
that, in the event the Participant later notifies the Plan Administrator of his
whereabouts and requests the payments due to him under the Plan, the forfeited
amount shall be restored either from forfeitures under the Plan or by a special
contribution by the Plan Sponsor to the Plan, as determined by the Plan
Administrator, in an amount equal to the payment to be paid to the Participant.
ARTICLE 10
LIMITATION OF RIGHTS
--------------------
Participation in the Plan shall not give any employee any right or claim
other than as unsecured general creditor of a Plan Sponsor. The adoption of the
Plan and the Trust by any Plan Sponsor shall not be construed to give any
employee a right to be continued in the employ of a Plan Sponsor or as
interfering with the right of a Plan Sponsor to terminate the employment of any
employee at any time.
ARTICLE 11
AMENDMENT TO OR TERMINATION OF THE
----------------------------------
PLAN AND THE TRUST
------------------
11.1 Right of Primary Sponsor to Amend or Terminate. The Primary Sponsor
-----------------------------------------------
reserves the right at any time to modify or amend or terminate the Plan or the
Trust in whole or in part. No such modifications or amendments shall have the
effect of reducing a Participant's vested Account prior to the effective date of
such modification or amendment.
11.2 Plan Termination. The Primary Sponsor may terminate the Plan, pursuant
----------------
to (a), (b), (c), or (d):
(a) The Primary Sponsor may terminate and liquidate the Plan within
twelve (12) months of a corporate dissolution taxed under Code Section 331,
or with the approval of a bankruptcy court pursuant to 11 U.S.C.
ss.503(b)(1)(A), provided that the vested Accounts distributed from Plan
are included in the Participants' respective gross incomes in the latest of
the following years (or, if earlier, the taxable year in which the amount
is actually or constructively received):
(1) The calendar year in which the Plan termination and
liquidation occurs;
(2) The first calendar year in which the Account is no longer
subject to a substantial risk of forfeiture; or
(3) The first calendar year in which the payment of the vested
Account is administratively practicable.
16
(b) The Primary Sponsor may terminate and liquidate the Plan pursuant
to irrevocable action taken by the Primary Sponsor within the thirty (30)
days preceding or the twelve (12) months following a Change in Control,
provided that this Subsection will only apply to a payment under the Plan
if all agreements, methods, programs, and other arrangements sponsored by
the Employer Group immediately after the Change in Control with respect to
which deferrals of compensation are treated as having been deferred under a
single plan under Treasury Regulations Section 1.409A-1(c)(2) are
terminated and liquidated with respect to each participant that experienced
the Change in Control, so that under the terms of the termination and
liquidation, all such participants are required to receive all amounts of
compensation deferred under the terminated agreements, methods, programs,
and other arrangements within twelve (12) months of the date the Employer
Group irrevocably takes all necessary action to terminate and liquidate the
agreements, methods, programs, and other arrangements. Solely for purposes
of this Subsection (b), where the Change in Control event results from an
asset purchase transaction, the applicable member of the Employer Group
with the discretion to liquidate and terminate the agreements, methods,
programs, and other arrangements is the member of the Employer Group that
is primarily liable immediately after the transaction for the payment of
the deferred compensation.
(c) The Primary Sponsor may terminate and liquidate the Plan, provided
that
(1) The termination and liquidation does not occur proximate to a
downturn in the financial health of any member of the Employer Group;
(2) Every member of the Employer Group terminates and liquidates
all agreements, methods, programs, and other arrangements sponsored by
the any member of the Employer Group that would be aggregated with any
terminated and liquidated agreements, methods, programs, and other
arrangements under Treasury Regulations Section 1.409A-1(c) if a
Participant had deferrals of compensation under all of the agreements,
methods, programs, and other arrangements that are terminated and
liquidated;
(3) No payments in liquidation of the Plan are made within twelve
(12) months of the date the Primary Sponsor takes all necessary action
to irrevocably terminate and liquidate the Plan other than payments
that would be payable under the terms of the Plan if the action to
terminate and liquidate the Plan had not occurred;
(4) All payments are made within twenty-four (24) months of the
date the Primary Sponsor takes all necessary action to irrevocably
terminate and liquidate the Plan; and
(5) No member of the Employer Group adopts a new plan that would
be aggregated under Treasury Regulations Section 1.409A-1(c) with any
plan terminated and liquidated pursuant to this Subsection if any such
plan covers any employee who was a participant in any such plan, at
any time within three years
17
following the date the Primary Sponsor takes all necessary action to
irrevocably terminate and liquidate the Plan.
(d) By ceasing any and all contributions to the Plan or taking any
such other action to terminate the Plan as the Primary Sponsor deems
appropriate, in which event the payment of Participants' vested Accounts
under the Plan will be made at the time and in the form as they would
otherwise have been made had the Plan not been terminated.
11.3 Plan Merger. In the case of any merger or consolidation of the Plan
-----------
with, or any transfer of the assets or liabilities of the Plan to, any other
plan, the terms of the merger, consolidation or transfer shall be such that each
Participant would receive (in the event of termination of the Plan or its
successor immediately thereafter) a benefit which is no less than the benefit
which the Participant would have received in the event of termination of the
Plan immediately before the merger, consolidation or transfer.
IN WITNESS WHEREOF, the Primary Sponsor has adopted this Plan effective as
of the date first set forth above.
SILGAN CONTAINERS CORPORATION
By: /s/ Anthony E. Cost
-------------------------------
Name: Anthony E. Cost
-----------------------------
Title: V.P. Human Resources
--------------------
FIRST AMENDMENT TO THE
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS FIRST AMENDMENT is made on November 1, 2008, by SILGAN CONTAINERS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (the "Sponsoring Employer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Sponsoring Employer maintains the Silgan Containers
Corporation Supplemental Executive Retirement Plan (the "Plan"), as amended and
restated effective January 1, 2007;
WHEREAS, subsequent to the adoption of the amended and restated Plan, the
Sponsoring Employer adopted the amended and restated Silgan Containers
Corporation Pension Plan for Salaried Employees (the "Salaried Pension Plan")
effective July 1, 2008;
WHEREAS, certain definitions in the Plan refer to definitions in the
Salaried Pension Plan;
WHEREAS, the Sponsoring Employer desires to amend the Plan to clarify the
application of certain terms in the Salaried Pension Plan to participants in the
Plan; and
WHEREAS, this amendment shall supersede the provisions of the Plan to the
extent those provisions are inconsistent with the provisions of this amendment.
NOW, THEREFORE, the Sponsoring Employer does hereby amend the Plan,
effective as of July 1, 2008, as follows:
1. By deleting the existing Section 1.18 and substituting therefor the
following:
"1.18 `Normal Retirement Age' means the earlier of:
---------------------------
(a) the attainment of at least age sixty (60) with the completion of ten
(10) or more years of Vesting Service; or
(b) the attainment of at least age sixty-five (65) with the completion
of five (5) or more years of Vesting Service."
2. By deleting the existing Section 1.21 and substituting therefor the
following:
"1.21 `Period of Service' means `Period of Service' as defined in the
-----------------
Pension Plan prior to July 1, 2008."
3. By adding the following new Section 1.34:
"1.34 `Vesting Service' means `Vesting Service' as defined in the
----------------
Pension Plan.
4. By deleting the existing Section 6.6 and substituting therefor the
following:
"6.6 Vesting. A Participant shall always be fully vested in
-------
contributions made to his Deferral Contribution Account. Contributions made
to a Participant's Matching Account, DISP Make-up Account, and Supplemental
Pension Account shall vest according to the following schedule:
Full Years of Vesting Service Vested Percentage
----------------------------- -----------------
Less than 5 0%
5 or more 100%"
Except as specifically amended hereby, the Plan shall remain in full force
and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Sponsoring Employer has caused this First Amendment
to be executed as of the day and year first above written.
SILGAN CONTAINERS CORPORATION
By: /s/ Anthony E. Cost
------------------------------------
Title: Vice-President - Human Resources
--------------------------------