COASTCAST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Exhibit 10.28
73
TABLE OF CONTENTS
PAGE
PREAMBLE.........................................................................1
ARTICLE I DEFINITIONS..............................................................1
1.1 Actuarial Equivalent.....................................................1
1.2 Board....................................................................1
1.3 Cause....................................................................2
1.4 Change of Control........................................................2
1.5 Company..................................................................3
1.6 Disability...............................................................3
1.7 Early Retirement Date....................................................3
1.8 Effective Date...........................................................3
1.9 Eligible Employee........................................................4
1.10 ERISA....................................................................4
1.11 Estimated Section 401(k) Plan Benefit....................................4
1.12 Estimated Social Security Benefit........................................4
1.13 Final Average Salary.....................................................5
1.14 Good Reason..............................................................5
1.15 Independent Plan Administrator...........................................6
1.16 Normal Retirement Date...................................................6
1.17 Participant..............................................................6
1.18 Plan.....................................................................6
1.19 Plan Year................................................................6
1.20 Plan Administrator.......................................................6
1.21 Postponed Retirement Date................................................6
1.22 Prior Plan Benefit.......................................................6
1.23 Retirement...............................................................7
1.24 Retirement Date..........................................................7
1.25 Section 401(k) Plan......................................................7
1.26 Termination of Employment................................................7
1.27 Years of Participation...................................................7
1.28 Years of Service.........................................................7
ARTICLE II ELIGIBILITY FOR BENEFITS.................................................8
2.1 Eligibility to Participate...............................................8
2.2 Entitlement to Benefits..................................................8
(a) Normal or Early Retirement........................................8
(b) Termination of Employment Prior to
Retirement........................................................8
(c) Pre-Retirement Death Benefit......................................8
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PAGE
(d) Post-Retirement Death Benefit.....................................9
(e) Disability Retirement Benefit.....................................9
2.3 Forfeiture of Benefits...................................................9
ARTICLE III BENEFITS................................................................10
3.1 Amount of Benefit.......................................................10
3.2 Form of Benefit.........................................................10
3.3 Payment of Benefits.....................................................11
3.4 Payees Under Legal Disability...........................................11
3.5 Withholding for Taxes...................................................11
3.6 Mailing of Payments.....................................................12
3.7 Grantor Trust...........................................................12
3.8 Protective Provisions...................................................12
ARTICLE IV CHANGE OF CONTROL.......................................................12
4.1 Entitlement to Benefits.................................................12
4.2 Full Vesting............................................................13
ARTICLE V OPERATION AND ADMINISTRATION OF THE PLAN................................13
5.1 Plan Administrator Powers...............................................13
5.2 Composition of Plan Administrator.......................................13
5.3 Plan Administrator Procedure............................................14
5.4 Notices and Communications..............................................14
5.5 Reporting and Disclosure................................................15
5.6 Conflict of Interest....................................................15
5.7 Indemnification.........................................................15
ARTICLE VI APPLICATION FOR BENEFITS................................................15
6.1 Application for Benefits................................................15
6.2 Content of Denial.......................................................15
6.3 Appeals.................................................................16
6.4 Arbitration.............................................................16
6.5 Exhaustion of Remedies..................................................17
ARTICLE VII MISCELLANEOUS MATTERS...................................................17
7.1 Amendment or Termination................................................17
7.2 Effect of Reorganization or Transfer of Assets..........................17
7.3 Rights of Participants..................................................18
7.4 Assignment of Benefits..................................................18
7.5 Other Plans.............................................................18
7.6 Interpretation..........................................................18
7.7 Receipt or Release......................................................19
7.8 Governing Law...........................................................20
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PAGE
Exhibit A Recognition or Predecessor Employer Service.............................20
Exhibit B Enhanced Benefit Accrual Formula for Larry Cornelius....................21
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COASTCAST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
The principal objective of the Coastcast Corporation Supplemental
Executive Retirement Plan ("Plan") is to help ensure that the Company
provides a competitive level of benefits in order to attract, retain, and
motivate selected executives. The Plan is designed to provide retirement
benefits to selected employees that will help the Company meet this objective.
The Plan was originally adopted effective September 1, 1996. The Plan was
amended and restated effective as of January 1, 1998 (the "Restatement
Effective Date") to freeze benefits at the level accrued as of December 31,
1997 for all participants as of that date, except Hans Buehler. Mr Buehler
voluntarily agreed to reduce his accrued benefits under the Plan to zero and
shall not continue to participate in the Plan. With respect to Participants
with an accrued benefit as of December 31, 1997 who continued to be employed
on December 18, 1998, such Participants shall be entitled (subject to
satisfaction of the vesting and other conditions imposed under the Plan) to
the greater of their accrued benefit as of December 31, 1997 (the "Prior Plan
Benefit") or the accrued benefit determined under this amended and restated
Plan document, which includes a revised benefits formula and counts service
prior to the Effective Date for purposes of determining accrued benefits. The
Plan was further amended and restated effective as of January 1, 1999 to
revise the benefit accrual formula by the addition of Section 3.1(d).
The Plan was established for the purpose of providing benefits to a
select group of management or highly compensated employees. The benefits
under the Plan are considered unfunded. Accordingly, it is intended that the
Plan be exempt from the requirements of Parts II, III, and IV of Title I of
Employee Retirement Income Security Act of 1974 ("ERISA") pursuant to
Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA.
ARTICLE I
DEFINITIONS
1.1 ACTUARIAL EQUIVALENT. The "Actuarial Equivalent" of two (2) forms of
benefits shall be determined using the following actuarial assumptions:
Interest rate: 7.5%
Mortality: 1983 Group Annuity Mortality Table (80%of
male factors applied on a unisex basis)
1.2 BOARD. The Board of Directors of Coastcast Corporation or its
delegate.
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1.3 CAUSE "Cause" shall mean:
(a) Theft or embezzlement from the Company or its affiliates
(regardless of whether or not such affiliates maintain the Plan),
(b) Fraud or other acts of dishonesty in the conduct of the
business of the Company or its affiliates (regardless of whether or not such
affiliates maintain the Plan) or the fulfillment of the Participant's
assigned responsibilities thereunder,
(c) Conviction of, or plea of NOLO CONTEDERE to, any felony or any
crime involving moral turpitude,
(d) Willful and knowing action which is materially injurious to
the business or reputation of the Company or its affiliates (regardless of
whether or not such affiliates maintain the Plan).
1.4 CHANGE OF CONTROL. A "Change of Control" shall be deemed to have
occurred upon the occurrence of any one (or more) of the following events:
(a) the Company is merged or consolidated or reorganized into or
with another corporation and less than a majority of the combined voting
power of the then outstanding securities of the surviving corporation
immediately thereafter is held in the aggregate by the holder of Voting Stock
(as defined below) of the Company immediately prior to such transaction;
(b) the Company sells or otherwise transfers all or substantially
all of its assets to any other corporation, if less than a majority of the
combined voting power of the then outstanding voting securities of such
corporation immediately after such sale or transfer is held in the aggregate
by the holders of Voting Stock of the Company immediately prior to such sale
or transfer;
(c) as a result of, or in connection with, any cash tender or
exchange offer, merger, reorganization or other business combination, sale of
assets or contested election, or any combination of the foregoing transactions
(a "Transaction"), the individuals who were members of the Board immediately
prior to the Transaction cease to constitute a majority of the members of the
Board or of the board of directors of any successor to the Company, unless
the election or nomination for election by the holders of the Voting Stock of
the Company was approved by a vote of the majority of Board members then
still in office who were members of the Board immediately prior to the
Transaction; or
(d) in connection with a transfer or assignment of Voting Stock by
the current beneficial owners of Voting Stock, the beneficial ownership of
Voting Stock changes such that less than a majority of the Voting Stock
outstanding immediately after such assignment or transfer is held by the
current beneficial owners of Voting Stock.
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For purposes of this Section, (i) "Voting Stock" shall mean shares of the
Company representing the combined voting power of the then outstanding
securities entitled to vote generally in the election of the Board, and (ii)
"beneficial ownership" and "beneficial owners" shall have the meaning
ascribed to it under Rule 13d-3 or any successor rule or regulation
promulgated under the Securities Exchange Act of 1934, as amended, as well as
any person or entity who, directly or indirectly, controls, is controlled by
or under common control with such beneficial owner.
1.5 COMPANY. Coastcast Corporation and any affiliated companies that
maintain the Plan.
1.6 DISABILITY. Any cessation of the Participant's employment with the
Company as a result of the inability of the Executive to perform his usual
duties for the Company for an extended period by reason of mental or physical
illness or injury. The Plan Administrator, in its complete and sole
discretion, shall determine a Participant's Disability after receiving
competent medical advice using nondiscriminatory standards and may rely on
the determination of any disability insurance carrier providing benefits
under the terms of any employer provided disability insurance coverage. At
all times during the period of Disability, the Participant must be receiving
medical care from a competent physician unless the Participant provides the
Plan Administrator with written proof acceptable to the Plan Administrator
that additional medical care will be of no benefit. The Plan Administrator
may require that the Participant submit to an examination on an annual basis
by a competent physician or medical clinic selected by the Plan Administrator
to confirm whether a Disability is continuing. The Plan Administrator shall
have discretion to make a determination based on the medical evidence.
1.7 EARLY RETIREMENT DATE.
(a) The first day of any month coincident with or next following
the month in which the Participant terminates employment with the Company:
(i) After becoming eligible for early retirement benefits, but
(ii) Before his Normal Retirement Date.
(b) A Participant first becomes eligible for early retirement
benefits when:
(i) He or she attains age fifty-five (55), and
(ii) He or she has at least five (5) Years of Participation.
1.8 EFFECTIVE DATE. The original effective date of the Plan was
September 1, 1996 (the "ORIGINAL EFFECTIVE DATE"). The effective date of this
amended and restated Plan, is January 1, 1998 (the "RESTATEMENT EFFECTIVE
DATE"), but the amendments continuing benefit accruals after December 31,
1997 only apply with respect to Participants who were Eligible Employees on
or after December 18, 1998.
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1.9 ELIGIBLE EMPLOYEE. A management level or highly compensated
employee of the Company who is designated to participate in the Plan by the
Plan Administrator.
1.10 ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
1.11 ESTIMATED SECTION 401(k) PLAN BENEFIT.
(a) A Participant's annual retirement benefit payable as a straight
life annuity at Retirement, based on the Actuarial Equivalent value of the
Company Matching Contributions to the Section 401(k) Plan on his behalf
(computed in accordance with the rules of Paragraph (b) below).
(b) The amount of the Elective Deferral Contributions and Company
Matching Contributions is computed as if:
(i) The Participant had commenced participation in the
Section 401(k) Plan on the date when he first became eligible to make
Elective Deferral Contributions to that plan, and
(ii) The Participant elected the maximum Elective Deferral
Contributions and had received the maximum amount of Company Matching
Contribution that he could receive each year, based upon the amount of his
income that is taken into account under the Section 401(k) Plan for that year.
1.12 ESTIMATED SOCIAL SECURITY BENEFIT.
(a) The annual Primary Insurance Amount estimated by the
Administrative Committee to be payable to the Participant under the Social
Security Act at his Normal Retirement Date (based on the assumption that the
Participant is eligible to receive Social Security Benefits, even if his
actual Social Security retirement age is later), determined without regard to
any Late Retirement Credit under the Social Security Act.
(b) The Estimated Social Security Benefit for a Participant whose
employment is terminated before age sixty-five (65) will be calculated
assuming the Participant will:
(i) Not receive any future wages that would be treated as
wages for purpose of the federal Social Security Act, and
(ii) Begin receiving Social Security benefits at his Normal
Retirement Date under this Plan (based on the assumption that the Participant
is eligible to receive Social Security Benefits, even if his actual Social
Security retirement age is later).
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(c) The Estimated Social Security Benefit of a Participant will
not be increased by reason of any increase in the Primary Insurance Amount
that occurs following the termination of his employment.
1.13 FINAL AVERAGE SALARY.
(a) The Participant's average annual salary (excluding bonuses and
other non-regular forms of compensation) earned from the Company (before
adjustments for pre-tax contributions to Company sponsored employee benefit
Plans) during the three (3) highest salary years of the five (5) year period
ending on the December 31st next preceding the Termination of Employment
Date. Solely for purposes of determining the Prior Plan Benefit, Final
Average Salary shall be calculated based on the three (3) highest salary
years of the five (5) year period ending on December 31, 1997.
(b) In the event that the Participant has less than three (3)
calendar years of employment with the Company, his Final Average Salary shall
be the average amount of his annualized salary for the entire period.
1.14 GOOD REASON. The occurrence of any of the following circumstances
after a Change of Control, unless, in the case of events described in
Paragraphs (a), (b), (c) or (d) below, the circumstances are fully corrected
before the effective date of the Participant's notice that he is resigning
from the Company:
(a) A significant reduction or adverse change in the nature or
scope of the Participant's powers, functions, titles, position,
responsibilities or duties in respect of the Company or any affiliate, other
than a change to which the Participant consents;
(b) The Company's reduction in the Participant's annual base
salary (or any bonus provided for in a written employment agreement between
the Company and the Participant) as in effect immediately before the Change
of Control or as it may be subsequently increased;
(c) The Company's failure to pay within seven (7) days of the due
date any portion of:
(i) The Participant's current compensation, or
(ii) An installment of deferred compensation under any
deferred compensation plan of the Company;
(d) The Company's material reduction or failure to continue in
effect any compensation or benefits plan in which the Participant
participated immediately before the Change of Control that is material to his
total compensation, including but not limited to this Plan or any similar
plans adopted before the Change of Control. This provision shall not apply if
an
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equitable arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan;
Notwithstanding the foregoing, no act or omission by the Company or any
Affiliate shall constitute Good Reason unless:
(i) the Participant gives the Company or the
Affiliate written notice thereof within six (6) months after he first knew or
should have known of such act or omission; and
(ii) the act or omission is not remedied within
thirty (30) days after receipt of such notice.
1.15 INDEPENDENT PLAN ADMINISTRATOR. A person, persons or entity which,
prior to a Change in Control has accepted in writing the position of
Independent Plan Administrator under the grantor trust agreement established
under Section 3.7 hereof. The appointment of the Independent Plan
Administrator shall be determined under the provisions of the grantor trust
agreement established under Section 3.7 hereof. Unless otherwise designated
under the grantor trust agreement established under Section 3.7 hereof, the
Independent Plan Administrator shall be a committee, the members of which
shall be Hans Buehler, Norman Fujitaki and Robert Gates. After a Change in
Control, the designation of the Independent Plan Administrator may not be
changed without written consent of a majority of the persons designated as
the Independent Plan Administrator.
1.16 NORMAL RETIREMENT DATE. The Participant's sixty-fifth (65th)
birthday.
1.17 PARTICIPANT. An Eligible Employee who has become a participant in
the Plan in accordance with Section 2.1.
1.18 PLAN. Coastcast Corporation Supplemental Executive Retirement
Plan.
1.19 PLAN YEAR. The fiscal year of the Plan, which shall be the period
beginning on January 1 and ending on the following December 31.
1.20 PLAN ADMINISTRATOR. The person, persons or entity appointed by the
Board pursuant to Article V to manage, administer, interpret, and construe
the Plan.
1.21 POSTPONED RETIREMENT DATE. The first day on which the Participant
terminates employment with the Company following his Normal Retirement Date.
1.22 PRIOR PLAN BENEFIT. The Participant's annual accrued benefit
based on Years of Participation and Final Average Salary at December 31, 1997
under the terms of the Plan in effect prior to the Restatement Effective
Date. The Prior Plan Benefit is frozen as of December 31, 1997.
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1.23 RETIREMENT. The termination of a Participant's employment with
the Company after he has satisfied the requirements for benefits under
Section 2.2 below.
1.24 RETIREMENT DATE. A Participant's Normal, Early, or Postponed
Retirement Date (whichever is applicable).
1.25 SECTION 401(k) PLAN. The Coastcast Corporation 401(k) Retirement
Plan as amended from time to time.
1.26 TERMINATION OF EMPLOYMENT. A participant's cessation of
employment with the Company and affiliates for any reason whatsoever,
voluntary or involuntary, including by reason of death or Disability.
1.27 YEARS OF PARTICIPATION. The number of complete Plan Years that
the Participant has been a Participant in the Plan while employed by the
Company, beginning with the first Plan Year in which the Participant
commences participation in the Plan pursuant to Section 2.1 of the Plan. A
Participant will be credited with one (1) Year of Participation for each Plan
Year on or after the Effective Date during which the Participant completes
twelve (12) months of continuous service for the Company and is a
Participant in the Plan. Participants beginning participation on the Original
Effective Date of the Plan shall receive credit for a full Year of
Participation for the initial short Plan Year.
1.28 YEARS OF SERVICE.
(a) A Participant's years of service with the Company, including
periods prior to the Effective Date. Only complete Years of Service will be
taken into account under the Plan.
(b) A Participant will be credited with one (1) Year of Service
for each computation period during which the Participant completes twelve
(12) months of continuous service for the Company. A computation period shall
be the Plan Year. Except as otherwise set forth in resolutions of the Board:
(i) Each Participant will receive credit for all Years of
Service with the Company prior to commencing participation in the Plan, and
(ii) A Participant will be credited with any time while he is
on a leave of absence approved by the Company, including disability leave,
up to a maximum of two (2) additional Years of Service.
(c) Notwithstanding anything herein to the contrary, the Plan
Administrator may in its sole discretion designate in writing for any
participant the extent to which some or all service with a predecessor entity
shall be treated as service with the Company. Any such designation shall be
attached hereto as Exhibit A.
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ARTICLE II
ELIGIBILITY FOR BENEFITS
2.1 ELIGIBILITY TO PARTICIPATE
(a) An individual shall become a Participant at the time, and
on the conditions specified by the Plan Administrator.
(b) The Participants in the Plan as of the Restatement Effective
Date are the individuals specified in Exhibit A attached hereto. Additional
participants may be added to Exhibit A by the Plan Administrator without
requiring an amendment to the Plan.
(c) If it is subsequently determined that the participation of any
individual in the Plan is inconsistent with the Plan being exempt from the
requirements of Parts II, III and IV of Title I of ERISA, at the election of
the Plan Administrator, the present value of the current accrued benefit
payable to that individual shall be paid in a lump sum as soon as
administratively possible after such determination is made.
2.2 ENTITLEMENT TO BENEFITS. A Participant shall be entitled to the
accrued benefit determined pursuant to Article III hereof in accordance with
the following:
(a) NORMAL OR EARLY RETIREMENT. A Participant who has a
Termination of Employment on or after his Early Retirement Date or Normal
Retirement Date will be eligible to retire and receive accrued benefits under
this Plan at his Normal Retirement Date. Notwithstanding the foregoing, the
Participant may elect up to thirteen (13) months prior to Termination of
Employment to receive Actuarial Equivalent reduced benefits beginning on or
after his Early Retirement Date.
(b) TERMINATION OF EMPLOYMENT PRIOR TO RETIREMENT. A Participant
who has a Termination of Employment for a reason other than death or
Disability prior to attaining Early Retirement Date, but after completing
five (5) Years of Participation, shall be entitled to receive a deferred
vested accrued benefit at his Normal Retirement Date.
(c) PRE-RETIREMENT DEATH BENEFIT. In the event of the
Participant's death while still employed by the Company or an affiliate and
after completing five (5) Years of Participation, the Participant's surviving
spouse, if any, shall be entitled to receive a survivor benefit at the
Participant's Normal Retirement Date. The amount of the benefit payable to
the surviving spouse shall be determined as if:
(i) The Participant had retired on the day before his death,
and
(ii) Elected to receive his benefit in the form of an
Actuarial Equivalent one hundred percent (100%) joint and survivor annuity.
The value of the joint and
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survivor annuity will be the Actuarial Equivalent of the accrued benefit to
which the Participant would have become entitled based on his Years of
Service at the time of his death.
(d) POST-RETIREMENT DEATH BENEFIT. In the event of the
Participant's death after Termination of Employment, no further benefits
shall be payable under the Plan unless the Participant has elected, pursuant
to Section 3.2(b), to have benefits payable over the joint lives of the
Participant and the Participant's spouse, in which case the Actuarial
Equivalent benefit payments shall continue over the life of the Participant's
spouse or, if the Participant was entitled to deferred vested benefits at the
time of death, shall commence on the date Participant would have become
eligible for Retirement.
(e) DISABILITY RETIREMENT BENEFIT. In the event of a
Participant's Termination of Employment on account of a Disability which is
expected to continue until the date Participant otherwise would be eligible
for Retirement, Participant shall be entitled to receive a deferred vested
accrued benefit at his Normal Retirement Date, without regard to Years of
Participation. For purposes of determining the Participant's accrued
benefit, the period of Disability prior to the date Participant otherwise
would be eligible for Retirement will be considered an approved leave of
absence for which Participant may be entitled to up to a maximum of two (2)
additional Years of Service credit.
2.3 FORFEITURE OF BENEFITS. Notwithstanding anything herein to the
contrary, the benefit payable hereunder to a Participant shall be forfeited
if he:
(a) Engage in competition with the Company (either before or
after Retirement) without the Board's prior authorization in writing.
Prohibited competition shall include the direct or indirect competition with
the Company or any affiliate in connection with any prohibited business
(including, without limitation, employment by, rendering advisory or
consulting services to, service as a partner, shareholder, director, officer,
employee, agent, representative or independent contractor of, or financial
investment in a prohibited business). For purposes of this paragraph,
"prohibited business" shall mean any business (and any branch office,
location or operation thereof) which competes with any service or product
line of the Company or any Affiliate in any standard metropolitan statistical
areas in which the Company maintains current operations or has expansion plan
to which Participant is privy and any business involved in casting golf club
heads for manufacturers of premium price golf clubs; provided, however, that
a Participant may hold for investment less than one percent (1%) of the
outstanding common stock or debt securities of any corporation which is
regular traded on a recognized stock exchange;
(b) Is discharged for Cause; or
(c) Experiences a Termination of Employment prior to completing
five (5) Years of Participation.
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ARTICLE III
BENEFITS
3.1 AMOUNT OF BENEFIT. A Participant retiring in accordance with
Section 2.2 above will be eligible for a monthly retirement benefit equal to
one-twelfth the greater of the Prior Plan Benefit (as of December 31, 1997)
or the amount determined in Paragraph (a) below.
(a) The annual retirement benefit payable at a Participant's
Normal Retirement Date will be two percent (2%) of his Final Average Salary
for each Year of Service, not to exceed twenty-five (25). However, in no event
will a participant's Years of Service in excess of twenty-five (25) be taken
into account in determining the amount of his benefit. Furthermore, the
Participant's benefit will be reduced by the following amounts:
(i) His Estimated Social Security Benefit, and
(ii) The amount of benefit payable as a straight life annuity
at Normal Retirement Date, based on the Actuarial Equivalent value of the
benefit funded by the Company payable pursuant to the terms of any
tax-qualified defined benefit pension plan sponsored by the Company for the
benefit of one or more Participants.
(b) The annual retirement benefit payable to a Participant at an
Early Retirement Date will equal the Actuarial Equivalent of his benefit
determined in accordance with Paragraph (a) above (reduced for each month
that the benefit payment begins before age sixty-five (65)).
(c) The annual retirement benefit payable to a Participant at his
Postponed Retirement Date will equal his benefit determined in accordance
with Paragraph (a) above based on his Years of Service and Final Average
Salary as of his Postponed Retirement Date.
(d) Notwithstanding anything herein to the contrary, the monthly
retirement benefit for Larry Cornelius shall, in lieu of the amount
determined in accordance with Paragraph (a) above, equal one twelfth (1/12)
of the amount determined in Schedule B attached hereto, provided that Mr.
Cornelius continues to be employed through his Normal Retirement Date. In the
event Mr. Cornelius experiences a Termination of Employment for a reason
other than death or Disability prior to attaining his Normal Retirement Date,
the amount of the monthly retirement benefit shall be determined under this
Section 3.1, without regard to this Paragraph (d) or Schedule B.
3.2 FORM OF BENEFIT.
(a) The benefit determined under this Plan will be payable in the
form of a straight life annuity over the life of the Participant.
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(b) In accordance with rules and procedures prescribed by the Plan
Administrator, a Participant may elect at least thirteen (13) months prior to
Termination of Employment that his benefit be paid in the form of a joint and
(100%) survivor annuity payable over the joint lives of the Participant and
the Participant's spouse that will be the Actuarial Equivalent of the amount
of the Participant's benefit calculated pursuant to Paragraph (a) above. This
election must be made prior to the year in which the benefit becomes payable.
3.3 PAYMENT OF BENEFITS.
(a) Participants are not entitled to receive a distribution of
their benefits prior to Retirement.
(b) Benefits will begin on the first day of the month coincident
with or next following the Participant's Retirement Date. Benefits will
continue to be paid on the first day of each succeeding month.
(c) The last payment will be on the first day of the month in
which the retired Participant dies or forfeits, unless the Participant has
elected that his benefit be paid in an optional form in accordance with the
provisions of Section 3.2(b) above.
3.4 PAYEES UNDER LEGAL DISABILITY.
(a) If the Plan Administrator believes that any payee is:
(i) A minor, or
(ii) Legally incapable of giving a valid receipt and discharge
for any payment due him,
the Plan Administrator may have the payment, or any part of it, made to the
person(s) or institution that it believes is caring for or supporting the
payee.
(b) any payment under Paragraph (a) above shall be a payment for
the benefit of the payee and shall, to the extent thereof, be a complete
discharge of any liability under the Plan to the payee.
3.5 WITHHOLDING FOR TAXES. Any payments out of the Plan may be subject
to withholding for taxes as may be required by any applicable federal or
state law. To the extent that the benefit under this Plan is considered
wages for income or employment tax purposes during any period prior to the
time benefits become payable hereunder, the Company may withhold such taxes
from the Participant's current compensation as may be required by any
applicable federal or state law.
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3.6 MAILING OF PAYMENTS.
(a) All payments under the Plan shall be delivered in person or
mailed to the last address of the Participant (or, in the case of the death
of the Participant, to the last address of his surviving spouse).
(b) Each Participant shall be responsible for furnishing the Plan
Administrator with his current address.
3.7 GRANTOR TRUST. Although the Company is responsible for the payment
of all benefits under the Plan, the Company may, in its discretion,
contribute funds or assets (including insurance policies on the life of any
or all Participants) to a grantor trust for the purpose of paying benefits
under this Plan. Such trust may be irrevocable, but assets of the trust
shall be subject to the claims of creditors of the Company. To the extent any
benefits provided under the terms of the Plan are actually paid from the
trust, the Company shall have no further obligation with respect thereto. To
the extent any benefits provided under the terms of the Plan are not paid
from the trust, such benefits shall remain the obligation of and shall be
paid by the Company. The Participants shall have the status of unsecured
creditors insofar as their legal claim for benefits under the Plan and the
Participants shall have no security interest or preferred claim in or to the
assets of any such grantor trust.
3.8 PROTECTIVE PROVISIONS. Each Participant, as a condition of
participation, shall be required to cooperate with the Company by furnishing
any and all information requested by the Plan Administrator, to facilitate
payment of benefits hereunder by taking such physical examinations as may be
requested by the Plan Administrator. If the Participant refuses to so
cooperate, the Company shall have no further obligation to the Participant
under the Plan.
ARTICLE IV
CHANGE OF CONTROL
Notwithstanding anything in this Plan to the contrary, the provisions of
this Article IV apply to those Participants whose employment is terminated
within one (1) year following a Change of Control ("Affected Participants"),
as expressly provided herein.
4.1 ENTITLEMENT TO BENEFITS. If the employment of an Affected
Participant is terminated by the Company in an involuntary termination for
any reason other than Cause (or the Affected Participant voluntarily resigns
upon 30 days written notice for Good Reason), at any time within one (1) year
following a Change of Control and prior to becoming entitled to Retirement
under Section 2.2 above, he shall be entitled to receive a benefit at Normal
Retirement Date computed according to Section 3.1 above as if the termination
of employment date was the Affected Participant's Normal Retirement Date,
provided that this shall not increase the Participant's Years of Service.
Notwithstanding the foregoing, the Participant may elect up to
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thirteen (13) months prior to Termination of Employment to receive Actuarial
Equivalent reduced benefits beginning on or after his Early Retirement Date.
4.2 FULL VESTING. An Affected Participant entitled to benefits under
Section 4.1 shall be fully vested in his or her accrued benefit without
regard to Years of Participation, but nothing herein shall increase the
amount of the Participant's accrued benefit or accelerate the timing of
payment thereof.
ARTICLE V
OPERATION AND ADMINISTRATION OF THE PLAN
5.1 PLAN ADMINISTRATOR POWERS. The Plan Administrator shall have all
powers necessary to supervise the administration of the Plan and control its
operations. In addition to any powers and authority conferred on the Plan
Administrator elsewhere in the Plan or by law, the Plan Administrator shall
have the following powers and authority:
(a) To designate agents to carry out responsibilities relating to
the Plan;
(b) To employ such legal, actuarial, accounting, clerical, and
other assistance as it may deem appropriate in administering this Plan;
(c) To establish rules and procedures for the conduct of the Plan
Administrator's business and the administration of this Plan;
(d) To administer this Plan and to decide all questions which may
arise under this Plan. All determinations by the Plan Administrator shall be
binding upon all parties, to the maximum extent permitted by law. The Plan
Administrator shall have discretionary authority in all aspects of the
administration and interpretation of the Plan, including the interpretation
and construction of the Plan and the ability to make determinations of
disputed facts; and
(e) To perform or cause to be performed such further acts as it
may deem to be necessary or appropriate in the administration of the Plan.
5.2 COMPOSITION OF PLAN ADMINISTRATOR.
(a) The Plan Administrator (who need not be Participants or even
employees of the Company) shall be appointed by the Board of the Company and
shall continue until termination of such status in accordance with the
provisions of this Article V. In the event the Board does not designate the
Plan Administrator, the Plan Administrator shall be the Company and may the
Company's authorized officers may act on its behalf in a representative
capacity. Notwithstanding the foregoing, if the Company creates a trust as
described in Section 3.7 hereof, and, if such trust provides for an
Independent Plan Administrator, then, following a Change in
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Control of the Company, the Independent Plan Administrator (or any successor
Independent Plan Administrator) under the trust shall serve as Plan
Administrator of this Plan, so long as such entity is serving as Independent
Plan Administrator under the trust.
(b) The Plan Administrator or any individual member thereof may
resign at any time by giving written notice to the Board, effective as the
date stated in the notice. The Plan Administrator or any individual member
thereof may be removed by the Board at any time.
(c) In the case of a Plan Administrator or an individual member
thereof who is also an employee of the Company, his Status as Plan
Administrator shall terminate as of the effective date of the termination of
his employment, except as otherwise provided in resolutions adopted by the
Board.
(d) Upon the death, resignation, or removal of the Plan
Administrator, the Board may appoint a successor. Notice of the appointment
of a successor member shall be given by the Company in writing to the other
members of the Plan Administrator.
5.3 PLAN ADMINISTRATOR PROCEDURE.
(a) In the event the Plan Administrator is a committee of two or
more individuals, a majority of the members of the Plan Administrator shall
constitute a quorum. Any action authorized by a majority of the members:
(i) Present at any meeting, or
(ii) In writing without a meeting,
shall constitute the actions of the Plan Administrator.
(b) The Plan Administrator may designate one or more individuals
as authorized to execute any document or documents on behalf of the Plan
Administrator.
5.4 NOTICES AND COMMUNICATIONS.
(a) All communications from Participants to the Plan Administrator
shall be in writing, on forms prescribed by the Plan Administrator. These
communications shall be mailed or delivered to the office designated by the
Plan Administrator, and shall be deemed to have been given when received by
the Plan Administrator.
(b) Each communication from the Plan Administrator to a
Participant or beneficiary shall be in writing and may be delivered in person
or by mail. These communications shall be deemed to have been delivered and
received by the Participant three (3) days after the date when it is
deposited in the United States Mail with postage prepaid, addressed to the
Participant or beneficiary at this last address of record with the Plan
Administrator.
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5.5 REPORTING AND DISCLOSURE. The Company (and not the Plan
Administrator) shall be responsible for the reporting and disclosure of
information required to be reported or disclosed pursuant to ERISA or any
other applicable law.
5.6 CONFLICT OF INTEREST. Any member of the Plan Administrator who is
also a Participant shall not be qualified to act or vote on any matter
relating solely to himself.
5.7 INDEMNIFICATION. To the extent permitted by law, the Certificate of
Incorporation of the Company, the Bylaws of the Company and any indemnity
agreements between the Company and its directors or employees, the Company
shall indemnify each member of the Board and of the Plan Administrator, and
any other employee of the Company with duties under the Plan, against
expenses (including any amount paid in settlement) reasonably incurred by him
in connection with any claims against him by reason of his conduct in the
performance of his duties under the Plan.
ARTICLE VI
APPLICATION FOR BENEFITS
6.1 APPLICATION FOR BENEFITS.
(a) The Plan Administrator may require any person claiming
benefits under the Plan ("Claimant") to submit an application therefor,
together with such other documents and information as the Plan Administrator
may require.
(b) Within ninety (90) days following receipt of the application
and all necessary documents and information, the Plan Administrator's
authorized delegate reviewing the claim shall furnish the Claimant with
written notice of the decision rendered with respect to the application.
(c) Should special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished to
the Claimant prior to the expiration of the initial ninety (90) day period.
(i) The notice shall indicate the special circumstances
requiring an extension of time and the date by which a final decision is
expected to be rendered.
(ii) In no event shall the period of the extension exceed
ninety (90) days from the end of the initial ninety (90) day period.
6.2 CONTENT OF DENIAL . In the case of a denial of the Claimant's
application, the written notice shall sat forth:
(a) The specific reasons for the denial;
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(b) References to the Plan provisions upon which the denial
is based;
(c) A description of any additional information or material
necessary for perfection of the application (together with an explanation of
why the material or information is necessary); and
(d) An explanation of the Plan's claims review procedure.
6.3 APPEALS.
(a) In order to appeal the decision rendered with respect
to his application for benefits or with respect to the amount of his
benefits, the Claimant must follow the appeal procedures set forth in this
Section 6.3.
(b) The appeal must be made, in writing:
(i) In the case where the claim is expressly
rejected, within sixty (60) days after the date of notice of the decision
with respect to the application, or
(ii) In the case where the claim has neither been
approved nor denied within the applicable period provided in Section 6.1
above, within sixty (60) days after the expiration of the period.
(c) The Claimant may request that his application be given
full and fair review by the Plan Administrator. The Claimant may review all
pertinent documents and submit issues and comments in writing in connection
with the appeal.
(d) The decision of the Plan Administrator shall be made
promptly, and not later than sixty (60) days after the Plan Administrator's
receipt of a request for review, unless special circumstances require an
extension of time for processing. In such a case, a decision shall be
rendered as soon as possible, but not later than one hundred twenty (120)
days after receipt of the request for review.
(e) The decision on review shall be in writing and shall
include specific reasons for the decision, written in a manner designed to be
understood by the Claimant, with specific references to the pertinent Plan
provisions upon which the decision is based.
6.4 ARBITRATION. If the claim is denied after review, the
Applicant shall submit the claim to binding arbitration. Such arbitration
shall be binding and final. There shall be one arbitrator, who shall be a
retired superior court or federal court judge. The arbitrator shall have the
authority only to enforce the legal and contractual rights of the parties and
shall not add to, modify, disregard or refuse to enforce any contractual
provision, The arbitrator shall have no right, power or jurisdiction to award
an Applicant any punitive or exemplary damages of any kind. THE PARTICIPANT
AND THE COMPANY ACKNOWLEDGE AND AGREE
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THAT BY BECOMING A PARTICIPANT UNDER THE PLAN, THEY ARE AGREEING TO THIS
ARBITRATION PROVISION AND ARE WAIVING ALL RIGHTS TO A TRIAL BY JURY. The
prevailing party in any arbitration shall be entitled to recover his or its
reasonable attorneys' fees and costs. The provision of California Code of
Civil Procedure Sections 1281, et seq. govern this arbitration provision.
6.5 EXHAUSTION OF REMEDIES. No legal action for benefits under
the Plan may brought unless and until the Claimant has exhausted his remedies
under this Article VI.
ARTICLE VII
MISCELLANEOUS MATTERS
7.1 AMENDMENT OR TERMINATION.
(a) The Board may, at its sole discretion, amend or
terminate this plan at any time or from time to time, in whole or in part by
a duly adopted resolution, provided that, without the consent of each existing
Participant, no amendment or termination may adversely affect that
Participant's rights to receive accrued benefits as provided in the Plan, as
in effect prior to such amendment or termination.
(b) The termination of the Plan will result in the
immediate vesting of accrued benefits.
(c) All benefits will be payable at the time the
Participant would have otherwise been eligible to receive benefits under the
provisions of this Plan in effect before Plan termination. However, the Board
may elect to accelerate the payment of the benefits under the Plan, and to
pay such benefits in the form of lump sum distributions. Any lump sum
benefits paid under this Section 7.1(c) will be the Actuarial Equivalent of
the benefits determined under Section 3.1 above.
7.2 EFFECT OF REORGANIZATION OR TRANSFER OF ASSETS.
(a) In the event of a consolidation, merger, sale,
liquidation, or other transfer of substantially all of the operating assets
of the Company to any other company, the ultimate successor to the business
of the Company shall automatically be deemed to have elected to continue this
Plan in full force and effect, in the same manner as if the Plan had been
adopted by resolution of its board of directors.
(b) The presumption set forth in Paragraph (a) above shall
not apply if the successor, by resolution of its board of directors, elects
not to so continue this Plan in effect. In such a case, the Plan shall
terminate as of the effective date set forth in the board resolution.
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7.3 RIGHTS OF PARTICIPANTS.
(a) Nothing contained herein will confer on any Participant
the right to be retained in the service of the Company, nor will it interfere
with the Company's right to discharge or otherwise deal with the Participants
without regard to the existence of this Plan. The Company reserves the right
to terminate the employment of any Participant without any liability for any
claim against the Company except to the extent provided herein.
(b) The benefits under the Plan are unfunded. Accordingly,
no Participant shall have a preferred claim on, or a beneficial ownership
interest in, any assets of the Company prior to the time such assets are paid
to him in the form of benefits.
(c) All rights created under the Plan shall be mere
unsecured contractual rights of Participants against the Company. However,
nothing in this document shall in any way diminish any rights of a
Participant to pursue his rights as a general creditor of Company with
respect to his benefits under the Plan.
7.4 ASSIGNMENT OF BENEFITS. To the maximum extent permitted by
law, no benefit under this Plan may be assigned or alienated. Any purported
transfer, assignment, encumbrance, or attachment thereof shall be void and of
no effect. In the event of a dispute involving any individual's right to
receive the benefit hereunder, the Plan Administrator or the Company may enter
an interpleader action. Payments of the benefit to a court of competent
jurisdiction with proper notice to the appropriate parties in dispute shall
be in full satisfaction of all claims against the Plan Administrator and the
Company as to the Plan, and shall be equivalent to a receipt and release
pursuant to Section 7.7.
7.5 OTHER PLANS. This Plan shall not affect the right of any
Participant to participate in and receive benefits under and in accordance
with the provisions of any other employee benefit plans which are now or
hereafter maintained by the Company, unless the terms of such other employee
benefit plan or plans specifically provide otherwise.
7.6 INTERPRETATION.
(a) The provisions of this Plan shall in all cases be
interpreted in a manner that is consistent with the Plan satisfying the
applicable requirements of ERISA.
(b) If any provision of the Plan is held invalid or
unenforceable, its invalidity or unenforceability shall not affect any other
provisions of the Plan, and the Plan will be construed and enforced as if the
provision had not been included in it.
(c) Unless the context clearly indicates otherwise, the
masculine gender shall include the feminine, the singular shall include the
plural, and the plural shall include the singular.
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(d) Article and section headings are for convenience of
reference only and shall not be deemed to be part of the substance of this
instrument or in any way to enlarge or limit the contents of any Article or
Section.
7.7 RECEIPT OR RELEASE. Any payment to a Participant in
accordance with the provisions of this Plan shall, to the extent thereof, be
in full satisfaction of all claims against the Plan Administrator and the
Company, and the Plan Administrator may require such Participant, as a
condition precedent to such payment, to execute a receipt and release to such
effect.
7.8 GOVERNING LAW. Except to the extent preempted by ERISA, this
Plan shall be construed, administered, and governed in all respects in
accordance with the laws of the State of California. If any provisions of
this instrument shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions hereof shall continue to
be fully effective.
IN WITNESS WHEREOF, CoastCast Corporation has caused this Plan document
to be executed by its duly authorized officer as of the 19th day of February,
1999.
COASTCAST CORPORATION
By: /s/ Hans H. Buehler
-------------------------------
Hans H. Buehler, Chairman & CEO
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EXHIBIT A
RECOGNITION OF PREDECESSOR EMPLOYER SERVICE
The following designated individuals shall be entitled to Years of Service
credit with the predecessor employer designated opposite their name, provided
they continue to be employed with the Company on the earlier of their Normal
Retirement Date, death or Disability. Years of Service with the designated
predecessor employer will not be credited in the event of Termination of
Employment before Normal Retirement Date for any reason other than death or
Disability.
NAME PREDECESSOR EMPLOYER EMPLOYMENT DATES
- ---- -------------------- ----------------
Gordon Green Chri-Tek Tool and Mold, Inc. August 13, 1997-May 30, 1993
Stanley Green Chri-Tek Tool and Mold, Inc. August 13, 1997-May 30, 1993
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EXHIBIT B
ENHANCED BENEFIT ACCRUAL FORMULA FOR LARRY CORNELIUS
Subject to the terms of section 3.1(d), the annual retirement benefit
for Larry Cornelius (the "Participant") shall be equal to the greater of the
Prior Plan Benefit (as of December 31, 1997) or the amount determined in
Paragraph (A) below.
(A) The annual retirement benefit payable at the Participant's
Normal Retirement Date will be determined based on the designated percentage
for the specified period, as follows:
(1) fourteen percent (14%) of his Final Average Earnings for
the cumulative Years of Service periods prior to January
1, 1999; plus
(2) three percent (3%) of his Final Average Earnings for
each Year of Service during Plan Years 1999 through 2001;
plus
(3) five percent (5%) of his Final Average Earnings for each
Year of Service during Plan Years 2002 through 2004; plus
(4) six percent (6%) of his Final Average Earnings for each
Year of Service during Plan Years 2005 through 2006.
However, in no event will a cumulative percentage in excess of fifty percent
(50%) be taken into account in determining the amount of the Participant's
benefit.
(B) The amount determined in Paragraph (A) above shall be reduced
by the following amounts:
(1) The Participant's Estimated Social Security Benefit; and
(2) The amount of the benefit payable as a straight life
annuity at Normal Retirement Date, based on the Actuarial Equivalent value of
the benefit, if any, funded by the Company that is payable pursuant to the
terms of any tax-qualified defined benefit pension plan sponsored by the
Company.
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