EXHIBIT 10k2
JIM BEAM BRANDS CO.
AMENDED EXCESS BENEFIT PLAN
Section 1. Purpose. This Plan is an amendment and restatement,
effective as of January 1, 1987, by Jim Beam Brands Co. (the "Company") of
its Excess Benefit Plan. The Excess Benefit Plan is an unfunded excess
benefit plan established pursuant to Section 4(5) of ERISA as well as an
unfunded plan established for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees as referred to in Sections 201(a)(2), 301(a)(3) and 401(a)(1) of
ERISA in order to induce employees of outstanding ability to join or
continue in the employ of the Company and to increase their efforts for its
welfare by providing them with supplemental retirement and profit-sharing
benefits notwithstanding the limitations imposed by the Internal Revenue
Code on retirement and profit-sharing benefits from tax qualified plans.
Section 2. Definitions. As used in this Plan, the following
words shall have the following meanings:
(a) "Affiliated Employment" means employment by any corporation
which, at the time of such employment, is or was an affiliate of the
Company, or thereafter becomes or became an affiliate of the Company.
"Affiliated Plan" means a defined benefit pension plan by which an employee
of the Company had been covered during Affiliated Employment.
(b) "Allocation" means the Company contribution allocated to the
accounts of a Profit-Sharing Plan member under the Profit-Sharing Plan for
a Plan Year.
(c) "Committee" means the Retirement Committee of the Company.
(d) "Company" means Jim Beam Brands Co., a Delaware corporation,
its successors and assigns.
(e) "Credited Service" means the period of an employee's
employment with the Company.
(f) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(g) "Executive Participant" means an employee of the Company who
is within the category of a select group of management or highly
compensated employees as referred to in Sections 201(a)(2), 301(a)(3) and
40l(a)(l) of ERISA and who either holds or held the office of a Vice
President of the Company or any office senior thereto or, during the
current Plan Year or the prior Plan Year, was covered under the Jim Beam
Brands Co. Executive Incentive Plan.
(h) "415 Limitations" means the Retirement Plan and Profit-
Sharing Plan provisions adopted pursuant to Section 415 of the Internal
Revenue Code to limit (i) annual Retirement Plan benefits pursuant to
Section 415(b) thereof, (ii) annual additions to the Profit-Sharing Plan
pursuant to Section 415(c) thereof and (iii) the aggregate of annual
Retirement Plan benefits and additions to the Profit-Sharing Plan pursuant
to Section 415(e) thereof.
(i) "401(a)(17) Limitations" means the Retirement Plan and
Profit-Sharing Plan provisions adopted pursuant to Section 401(a)(17) of
the Internal Revenue Code to limit compensation considered for purposes of
computing Retirement Plan benefits and Profit-Sharing Plan contributions to
$150,000, effective as of January 1, 1994 (or such greater amount permitted
for such year in accordance with Section 401(a)(17) of the Internal Revenue
Code or the regulations promulgated by the Secretary of the Treasury or his
delegate).
(j) "Grantor Trust" means a trust for the benefit of an
Executive Participant established pursuant to Section 6 to provide for the
payment of benefits under this Plan.
(k) "Highly Compensated Employee" means an employee or former
employee of the Company who comes within the definition of a highly
compensated employee set forth in Section 414(q) of the Internal Revenue
Code (or any successor provision) for any Plan Year.
(l) "Highest Three-Year Average Earnings" means the total
compensation of an employee paid in the three consecutive Plan Years within
such employee's period of Service considered for purposes of computing his
benefits hereunder that provide the highest aggregate of compensation
divided by three.
(m) "Normal Retirement Date" means the last day of the calendar
month in which a person's 65th birthday occurs.
(n) "Plan Year" means the calendar year.
(o) "Profit-Sharing Plan" means, effective as of January 1,
1994, the Jim Beam Brands Co. Profit-Sharing and 401(k) Savings Plan as
amended from time to time.
(p) "Retirement Plan" means the Jim Beam Brands Co. Salaried
(Non-Union) Employees' Pension Plan as amended from time to time.
(q) "Segregated Account" means an account established with a
bank or other financial institution approved by the Company, or other form
of segregated account approved by the Company, established pursuant to
Section 6 by or for the benefit of an Executive Participant to provide for
the payment of benefits under this Plan.
(r) "Service" means the period of employment with the Company
and Affiliated Employment.
(s) "Surviving Spouse" means the surviving husband or wife of an
employee of the Company who has been married to the employee throughout the
one-year period ending on the date of the death of such employee.
Section 3. Retirement Benefits.
(a) Each person who is a Highly Compensated Employee at the date
of termination of employment or during the prior Plan Year and to whom
benefits become payable under the Retirement Plan shall be paid a
supplemental annual retirement benefit under this Plan equal in amount to
the difference between (i) the benefit paid under the Retirement Plan and
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the Affiliated Plans and (ii) the benefit that would be payable if the 415
Limitations were not contained therein; provided, however, that the
aggregate annual retirement benefits payable under this Plan, the
Retirement Plan and the Affiliated Plans shall not exceed the lesser of
$225,000 or the Highly Compensated Employee's Highest Three-Year Average
Earnings; and provided further, however, that for purposes of computing the
amount of benefit under this Plan, years of Credited Service shall not
exceed 35. If such a Highly Compensated Employee's Surviving Spouse is
entitled to a pre-retirement spouse's benefit under the Retirement Plan,
the Surviving Spouse shall be paid a benefit hereunder equal to the
difference between (i) the spouse's benefit payable under the Retirement
Plan and the Affiliated Plans and (ii) the spouse's benefit that would be
payable if the 415 Limitations were not contained therein.
(b) Each person who is an Executive Participant at the date of
termination of employment or during the prior Plan Year to whom benefits
become payable under the Retirement Plan shall be paid a supplemental
annual retirement benefit under this Plan equal in amount to the difference
between (i) the benefit paid under the Retirement Plan and the Affiliated
Plans and (ii) the benefit that would be payable if the 401(a)(17)
Limitations and the 415 Limitations were not contained therein; provided,
however, that the aggregate annual retirement benefits payable under this
Plan, the Retirement Plan and the Affiliated Plans shall not exceed the
lesser of $225,000 or the Executive Participant's Highest Three-Year
Average Earnings; and provided further, however, that for purposes of
computing the amount of benefit under this Plan, years of Credited Service
shall not exceed 35. If such an Executive Participant's Surviving Spouse
is entitled to a pre-retirement spouse's benefit under the Retirement Plan
and subject to
Section 6, the Surviving Spouse shall be paid a benefit hereunder equal to
the difference between (i) the spouse's benefit payable under the
Retirement Plan and the Affiliated Plans and (ii) the spouse's benefit that
would be payable if the 401(a)(17) Limitations and the 415 Limitations were
not contained therein.
(c) Subject to Section 6, the supplemental retirement benefits
provided by this Plan shall be paid to the Executive Participant or Highly
Compensated Employee (or to any beneficiary designated by him in accordance
with the Retirement Plan, or to his Surviving Spouse if eligible for a
spouse's benefit under the Retirement Plan) concurrently with the payment
of the benefits payable under the Retirement Plan and in a form permitted
thereby. In the event the supplemental retirement benefit commences prior
to Normal Retirement Date or is payable in a form other than an annuity for
the life of the former employee only, the supplemental retirement benefit
shall be adjusted to the same extent as under the Retirement Plan. The
Committee may, however, direct that the supplemental retirement benefit
payable with respect to a former employee be paid as an actuarially
equivalent single sum payment, provided that (except for a distribution to
pay taxes as provided in Section 5 and except as provided in Section 6) no
such payment may be made prior to termination of Service or prior to the
date that benefits may become payable under the Retirement Plan. In
determining actuarial equivalency of a single sum payment in cash, there
shall be used the interest rate which would be used by the Pension Benefit
Guaranty Corporation for the month preceding the month for which the
determination is required for the purpose of determining the present value
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of a single sum distribution on plan termination and the UP-1984 unisex
mortality table.
Section 4. Supplemental Profit-Sharing Benefits.
(a) In the event that the Allocation under the Profit-Sharing
Plan is limited by the 415 Limitations for 1987 or any subsequent Plan Year
for a Highly Compensated Employee, the Highly Compensated Employee shall
receive a supplemental profit-sharing award under this Plan for such Plan
Year equal to the difference between (i) the Allocation actually made for
the Highly Compensated Employee to the Profit-Sharing Plan for such Plan
Year and (ii) the Allocation that would have been made to the Profit-
Sharing Plan for such Plan Year if the 415 Limitations were not contained
therein.
(b) In the event that the Allocation under the Profit-Sharing
Plan is limited by the 401(a)(17) Limitations and the 415 Limitations for
1987 or any subsequent Plan Year for an Executive Participant, the
Executive Participant shall receive a supplemental profit-sharing award
under this Plan for such Plan Year equal to the difference between (i) the
Allocation actually made to the Executive Participant and (ii) the
Allocation that would have been made to the Profit-Sharing Plan for such
Plan Year if the 401(a)(17) Limitations and the 415 Limitations were not
contained therein.
(c) Except as provided in Section 6, the award for any Plan Year
shall be made as of the first day of the following year and shall be deemed
to be thereafter invested in an interest bearing investment selected by the
Committee. The amount of a Highly Compensated Employee's or Executive
Participant's supplemental profit-sharing benefits under this Plan shall be
the aggregate amount of such awards together with any deemed investment
gain thereon and less any deemed investment loss.
(d) Supplemental profit-sharing awards and deemed investment
gain thereon shall be fully vested and nonforfeitable.
(e) Supplemental profit-sharing plan benefits shall be paid by a
single sum payment as soon as practicable following termination of
employment, subject to Section 6.
(f) Except as provided in Section 6, a Highly Compensated
Employee or Executive Participant may designate a beneficiary to receive
the unpaid portion of his supplemental profit-sharing benefits in the event
of his death. The designation shall be made in a writing filed with the
Committee on a form approved by it signed by the Highly Compensated
Employee or Executive Participant. If no effective designation of
beneficiary shall be on file with the Committee when supplemental profit-
sharing benefits would otherwise be distributable to a beneficiary, then
such benefits shall be distributed to the spouse of the Highly Compensated
Employee or Executive Participant or, if there is no spouse, to the
executor of the will or the administrator of his estate or, if no such
executor or administrator shall be appointed within six months after his
death, the Committee shall direct that distribution be made, in such shares
as the Committee shall determine, to the child, parent or other blood
relative of such Highly Compensated Employee or Executive Participant or to
such other person or persons as the Committee may determine.
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Section 5. Funding. Benefits under this Plan shall not be
funded in order that the Plan may be exempt from the provisions of Parts 2,
3 and 4 of Title I of ERISA. The Committee shall maintain records of
supplemental profit-sharing awards and the assumed investment thereof and
records for the calculation of supplemental retirement benefits. The
Company may, however, segregate assets which are intended to be a source
for payment of benefits hereunder for Executive Participants. In the event
benefits are hereafter determined to be taxable for Executive Participants
prior to actual receipt thereof, a payment shall be made to such Executive
Participants in an amount sufficient to pay such taxes notwithstanding that
the Executive Participant may not then have terminated Service or that the
payment is being made prior to the date that benefits would otherwise be
paid under the Retirement Plan. Amounts so paid shall then be used as an
offset to the supplemental retirement and profit-sharing benefits, if any,
thereafter payable which shall also be paid in an actuarially equivalent
lump sum (calculated as set forth in Section 3(c)) promptly upon the later
of termination of Service or attainment of age 55.
Section 6. Grantor Trusts and Segregated Accounts.
Notwithstanding Section 5 of this Plan, the Company may provide for the
establishment of Grantor Trusts and Segregated Accounts by or for the
benefit of individual Executive Participants to provide for the payment of
benefits under this Plan, consistent with the following provisions:
(a) The Trustee of the Grantor Trusts shall be a bank or trust
company approved by the Company and established under the laws of the
United States or a state within the United States and having either total
assets of at least $15 billion or trust assets of at least $25 billion.
Each Grantor Trust shall be established pursuant to a trust agreement
having terms and provisions approved by the Company and consistent with
this Section. The Grantor Trust shall be solely for the purpose of
providing benefits under the Plan with respect to the Executive
Participant, and neither the Company nor any creditors of the Company shall
have any interest in the assets of the Grantor Trust. The Company shall be
the administrator of the Grantor Trust, and shall have such powers as are
granted by the trust agreement.
(b) The Company shall pay the fees and expenses of the Trustee
and all the expenses for the management and administration of each Grantor
Trust and Segregated Account for all periods prior to the Executive
Participant's termination of employment, and for a period of sixty (60)
days thereafter and for any further period as may be authorized by the
Company, and shall indemnify the Executive Participant against any
liability or cost in respect thereof, including any tax liabilities or
costs.
(c) Each Segregated Account shall be a savings or other type of
account approved by the Company established with a bank or trust company
approved by the Company and established under the laws of the United States
or a state within the United States and having either total assets of at
least $15 billion or trust assets of at least $25 billion, or other form of
segregated account with such a bank or trust company or other financial
institution approved by the Company, in each case with such terms and
provisions as are approved by the Company and consistent with this Section.
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(d) The Company may from time to time make contributions to
either the Grantor Trust, or Segregated Account if directed by an Executive
Participant, in amounts which when added to the existing balances in the
Executive Participant's Grantor Trust and Segregated Account will be
approximately equal to the present value of the after tax equivalent of the
Executive Participant's accrued benefits under Sections 3 and 4.
(e) Unless the Grantor Trust has previously been terminated as a
result of the Executive Participant's actual or deemed withdrawal of all
amounts in his Grantor Trust and Segregated Account, as provided in
paragraph (l) of this Section 6, as promptly as practicable after the
Executive Participant's termination of employment, whether by retirement,
death or otherwise, the Company may make a final contribution to the
Executive Participant's Grantor Trust, or Segregated Account if directed by
the Executive Participant, in an amount which when added to the existing
balances in the Executive Participant's Grantor Trust and Segregated
Account, except for any balances which are attributable to amounts deemed
withdrawn previously and the income earned thereon, will be equal to (i)
the sum of the present value of the after tax equivalent of (A) if the
termination of employment is not by reason of the death of the Executive
Participant, the Executive Participant's benefit under Section 3, or if the
termination of employment is by reason of the death of the Executive
Participant, the Executive Participant's benefit under Section 3
immediately prior to his death and (B) the Executive Participant's
supplemental profit-sharing benefit under Section 4, offset by (ii) any
amounts previously actually withdrawn by the Executive Participant from his
Grantor Trust or Segregated Account and income which would have been earned
thereon, calculated as provided in paragraph (k) of this Section 6. If
prior to the Executive Participant's termination of employment his Grantor
Trust has previously been terminated as a result of the Executive
Participant's actual or deemed withdrawal of all amounts in his Grantor
Trust and Segregated Account, as promptly as practicable following such
termination of employment the Company may make a final payment to the
Executive Participant, or in the event of the death of the Executive
Participant his personal representative, in an amount equal to (i) the sum
of the present value of the after tax equivalent of (A) if the termination
of employment is not by reason of the death of the Executive Participant,
the Executive Participant's benefit under Section 3, or if the termination
of employment is by reason of the death of the Executive Participant, the
Executive Participant's benefit under Section 3 immediately prior to his
death and (B) the Executive Participant's supplemental profit-sharing
benefit under Section 4, offset by (ii) the amounts previously withdrawn or
deemed withdrawn by the Executive Participant from his Grantor Trust and
Segregated Account and income which would have been earned thereon,
calculated as provided in paragraph (k) of this Section 6.
(f) Amounts in a Grantor Trust or Segregated Account shall be
invested separately as to amounts representing the Executive Participant's
supplemental retirement benefit under Section 3 and the Executive
Participant's supplemental profit-sharing benefit under Section 4.
Supplemental retirement benefit amounts invested in a Grantor Trust shall
be invested solely in the Chase Manhattan Fixed Income Fund to the extent
practicable and otherwise in the Chase Manhattan Personal Trust Market Rate
Account. Supplemental profit-sharing benefit amounts invested in a Grantor
Trust shall be invested in one or more of (i) the Vista U.S. Government
Income Fund, (ii) the Vista Balanced Fund, (iii) the Chase Manhattan
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Personal Trust Market Rate Account or (iv) the Chase Manhattan Equity
Income Fund, in such portions as are elected by the Executive Participant
on a written election form approved by and filed with the Committee, all to
the extent practicable and otherwise in the Chase Manhattan Personal Trust
Market Rate Account. The Executive Participant may change such election at
any time by filing a new written election form with the Committee. The
Committee shall promptly notify the Trustee as to any such elections or
changes therein. Supplemental retirement benefit amounts and supplemental
profit-sharing benefit amounts invested in a Segregated Account shall be
invested solely in the Chase Manhattan Personal Trust Market Rate Account.
In lieu of the calculation of investment gain or loss on supplemental
profit-sharing awards prescribed by Section 4(c), an Executive
Participant's profit-sharing benefit under Section 4 shall include the
actual investment gain or loss on supplemental profit-sharing benefit
amounts invested in accordance with this paragraph (f) (and not deemed
withdrawn pursuant to paragraph (j) of this Section 6).
(g) The Executive Participant may designate a beneficiary to
receive amounts held in his Grantor Trust in the event of his death. The
designation shall be made in a writing filed with the Committee on a form
approved by it and signed by the Executive Participant. The Committee
shall notify the Trustee as to any such designation or changes therein.
The provisions of Section 3(b) and (c) and Section 4(f), providing for the
payment of benefits to the Surviving Spouse of the Executive Participant,
or other person designated by the Executive Participant or the Committee,
in the event of the death of the Executive Participant, shall not apply to
amounts in the Executive Participant's Grantor Trust or Segregated Account.
(h) The Company shall make payments to the Executive Participant
(or his beneficiary) from time to time in the approximate amounts required
to compensate the Executive Participant (or his beneficiary) for additional
federal, state and local taxes on income resulting from the inclusion in
the Executive Participant's or beneficiary's taxable income of
contributions to the Executive Participant's Grantor Trust and Segregated
Account, the final payment pursuant to paragraph (e) of this Section 6 if
the Grantor Trust has been terminated prior to the Executive Participant's
termination of employment, and the income of the Grantor Trust and
Segregated Account for periods prior to termination of employment
(including amounts paid by the Company pursuant to paragraphs (b) and (e))
of this Section 6.
(i) An Executive Participant may elect to transfer all or any
portion of the funds in his Grantor Trust to his Segregated Account, or to
transfer all or any portion of the funds in his Segregated Account to his
Grantor Trust, upon written notice of not less than sixty (60) days to the
Company and the Trustee and the financial institution with which the
Segregated Account is established.
(j) An Executive Participant may withdraw all or any portion of
the funds in his Grantor Trust or Segregated Account at any time upon not
less than sixty (60) days written notice to the Company and to the Trustee,
or the financial institution with which the Segregated Account is
established, as the case may be. In the event of any such withdrawal,
subject to the last sentence of this paragraph (j), (i) for purposes of
paragraphs (e), (f), (h), (k) and (l) of this Section 6 the Executive
Participant shall be deemed to have made a complete withdrawal of the funds
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in his Grantor Trust and Segregated Account at such time, (ii) no further
contributions shall be made thereafter by the Company to the Executive
Participant's Grantor Trust or Segregated Account until the time of the
Executive Participant's termination of employment, at which time the final
contribution or payment described in paragraph (e) of this Section 6 may be
made by the Company, and (iii) no further payments pursuant to paragraph
(h) of this Section 6 shall be made with respect to income of the Grantor
Trust or Segregated Account. The Compensation and Stock Option Committee
of American Brands, Inc., in the case of a Participant who is the Chief
Executive Officer of the Company, and the Corporate Employee Benefits
Committee of American Brands, Inc. in the case of all other Participants,
may determine, however, that, on the basis of hardship, (A) the Executive
Participant shall not be deemed to have withdrawn any amounts not actually
withdrawn, and payments pursuant to paragraph (h) of this Section 6 shall
continue to be made with respect to income of the Executive Participant's
Grantor Trust or Segregated Account on amounts so determined not deemed to
have been withdrawn, and also may determine (independently of any
determination pursuant to clause (A) of this sentence) that (B)
notwithstanding such withdrawal, contributions by the Company to the
Executive Participant's Grantor Trust or Segregated Account shall continue
to be made thereafter, as provided in paragraph (e) of this Section 6,
until the time of the Executive Participant's termination of employment.
(k) Benefits payable to an Executive Participant or Surviving
Spouse or other beneficiary under Sections 3 and 4 shall be offset by the
pre-tax equivalent of amounts in the Executive Participant's Grantor Trust
and Segregated Account at the time of the Executive Participant's
termination of employment (except for any amounts which are attributable to
amounts deemed withdrawn previously pursuant to paragraph (j) of this
Section 6 and the income earned thereon), including any final contribution
or payment pursuant to paragraph (e) of this Section 6, and by the present
value of the pre-tax equivalent of any amounts withdrawn or deemed
withdrawn by the Executive Participant from his Grantor Trust or Segregated
Account, plus the amounts of income which would have been earned on such
withdrawn amounts from the time of withdrawal until the time of termination
of employment, calculated by applying an earnings rate equal to the after
tax equivalent of l20% of the applicable monthly immediate annuity purchase
interest rate which would be used by the Pension Benefit Guaranty
Corporation from time to time during such periods for the purpose of
determining the present value of a single sum distribution on plan
termination.
(l) The Grantor Trust of an Executive Participant shall
terminate upon the actual or deemed withdrawal by the Executive Participant
of all amounts in the Grantor Trust and in his Segregated Account. The
Grantor Trust also shall terminate upon the expiration of sixty (60) days
following the termination of employment of the Executive Participant,
unless continued by agreement between the Executive Participant and the
Trustee.
(m) Upon the making of the final contribution or other payment
pursuant to paragraph (e) of this Section 6, and the payment pursuant to
paragraph (h) of this Section 6 in respect of additional taxes resulting
from such final contribution or payment, the Company shall have no further
liability for benefits otherwise payable under Sections 3 and 4 to the
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Executive Participant or his Surviving Spouse, estate or other
beneficiaries.
(n) The provisions of this Section 6 shall supersede the
provisions of any other Section of this Plan to the extent such other
provisions might be considered to conflict with the provisions of this
Section 6.
Section 7. Administration. This Plan shall be administered by
the Committee. All decisions and interpretations of the Committee shall be
conclusive and binding on the Company and Highly Compensated Employees and
Executive Participants. The Plan may be amended or terminated by the Board
of Directors of the Company at any time; provided, however, that no such
amendment or termination shall deprive any Highly Compensated Employee or
Executive Participant of supplemental retirement or profit-sharing plan
benefits accrued to the date of such amendment or termination or modify the
last two sentences of Section 5 in a manner adverse to any Executive
Participant.
Section 8. Nonassignability. No Highly Compensated Employee or
Executive Participant shall have the right to assign, pledge or otherwise
dispose of any benefits payable to him hereunder nor shall any benefit
hereunder be subject to garnishment, attachment, transfer by operation of
law, or any legal process.
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