EXHIBIT 10(n)
20TH CENTURY INDUSTRIES
401(k) SUPPLEMENTAL PLAN
REV 1/30/96
TABLE OF CONTENTS
ARTICLE I Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE III Eligibility and Participation . . . . . . . . . . . . . . . . 2
3.1 Eligibility to Participate. . . . . . . . . . . . . . . . . . . . . 2
3.2 Election of Payment Method. . . . . . . . . . . . . . . . . . . . . 3
ARTICLE IV Compensation Deferrals by Participants. . . . . . . . . . . . 4
4.1 Participant Compensation Deferrals. . . . . . . . . . . . . . . . . 4
4.2 Amounts of Participant Compensation Deferrals . . . . . . . . . . . 4
4.3 Provisions of Compensation Deferral Agreement . . . . . . . . . . . 5
ARTICLE V Company Matching Credits. . . . . . . . . . . . . . . . . . . 5
5.1 Matching Credits. . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE VI Participant Accounts and Subaccounts. . . . . . . . . . . . . 6
6.1 Participant Accounts and Subaccounts. . . . . . . . . . . . . . . . 6
6.2 Valuation of Account. . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VII Payment of Benefits . . . . . . . . . . . . . . . . . . . . . 7
7.1 Vesting of Benefits . . . . . . . . . . . . . . . . . . . . . . . . 7
7.2 Form and Date of Payment. . . . . . . . . . . . . . . . . . . . . . 7
7.3 Hardship Distributions. . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VIII Death Benefits. . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IX Right to Terminate or Modify Plan . . . . . . . . . . . . . . 8
ARTICLE X No Assignment, Etc. . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE XI The Committee . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE XII Release . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE XIII No Contract of Employment . . . . . . . . . . . . . . . . . . 9
ARTICLE XIV Company's Obligation to Pay Benefits. . . . . . . . . . . . . 10
ARTICLE XV Claim Review Procedure. . . . . . . . . . . . . . . . . . . . 10
ARTICLE XVI Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE XVII Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 11
17.1 Successor and Assigns. . . . . . . . . . . . . . . . . . . . . . . 11
17.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17.3 Limitations on Liability . . . . . . . . . . . . . . . . . . . . . 11
17.4 Certain Small Benefits . . . . . . . . . . . . . . . . . . . . . . 11
17.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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20TH CENTURY INDUSTRIES 401(k) SUPPLEMENTAL PLAN
ARTICLE I
PURPOSE
The purpose of the 20th Century Industries 401(k) Supplemental Plan (the
"Plan") is to attract and retain valuable executive employees by making
available certain benefits that otherwise would be unavailable under the
Company's Qualified 401(k) Plan because of limitations imposed under the
Internal Revenue Code.
This Plan is designed to qualify as an unfunded plan of deferred
compensation for a select group of management or highly compensated employees
described in 29 CFR Section 2520.104-23 and Sections 201(a), 301(a)(3) and
401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Further, this Plan is a plan described in Sections 114 and
3121(v)(2)(C) of the Internal Revenue Code ("Code"), established to pay
retirement income after termination of employment, and maintained solely for
the purpose of providing retirement benefits for employees in excess of the
limitations imposed by one or more of Sections 401(a)(17), 401(k), 401(m),
402(g), 403(b), 408(k), or 415 of such Code or any other limitation on
contributions or benefits in such Code on plans to which any of such Sections
apply.
ARTICLE II
DEFINITIONS
The following terms shall have the meanings set forth below in this
Article II, when capitalized:
2.1 "Account" means the Account maintained for a Participant on the books
of the Company to reflect the Participant's interest in this Plan. Such
Account shall consist of the following subaccounts:
(a) A Participant Compensation Deferral Subaccount reflecting the
Participant's Compensation Deferrals in accordance with Article IV, as
adjusted to reflect an investment return as provided in Section 6.2.
(b) A Matching Credits Subaccount reflecting Matching Credits made
on behalf of the Participant in accordance with Article V, as adjusted to
reflect an investment return as provided in Section 6.2.
2.2 "Company" means 20th Century Industries, and shall include any
corporation that is affiliated with 20th Century Industries, within the
meaning of Section 414(b), (c), (m) or (o) of the Code.
2.3 "Compensation" means, for a Plan Year, a Participant's base salary
and bonus prior to reduction by compensation deferrals under the Qualified
401(k) Plan and this Plan. Compensation shall take into account, for any
Participant Compensation Deferral election, only such compensation as is
payable with respect to services rendered after such election and during the
period such election is in effect.
2.4 "Compensation Deferral Agreement" means an agreement to defer
compensation as described herein.
2.5 "Committee" means the committee appointed to administer the Plan in
accordance with Article X.
2.6 "Effective Date" means January 1, 1996.
2.7 "Eligibility Date" means the first day of the first Plan Year, or the
first day of the portion of such first Plan Year, that an employee is
determined to be an Eligible Employee.
2.8 "Eligible Employee" means, for any Plan Year, any employee of the
Company who satisfies all of the following conditions:
(a) such employee (i) is a Grade 19 or above employee of the Company
for such Plan Year, or (ii) in the sole discretion of the Committee, is
determined by the Committee in writing to be eligible for a Plan Year
prior to the first day of such Plan Year, provided such employee is in a
category of employees described in Article I of the Plan, and
(b) such employee is, in the sole discretion of the Committee,
determined likely to be eligible to make Compensation Deferral
Contributions to the Qualified 401(k) Plan during such Plan Year.
2.9 "Matching Credit" means the matching credit by the Company
determined in accordance with Article V.
2.10 "Participant" means each Eligible Employee who has made an election
to participate in this Plan in accordance with Article III.
2.11 "Participant Compensation Deferrals" means deferrals of compensation
described in Article IV.
2.12 "Plan" means the 20th Century Industries 401(k) Supplemental Plan,
as set forth herein.
2.13 "Plan Administrator" means 20th Century Industries. For purposes of
Section 3(16)(A) of ERISA, 20th Century Industries shall be the "plan
administrator" and shall be responsible for compliance with any applicable
reporting and disclosure requirements imposed by ERISA.
2.14 "Plan Year" means the fiscal period commencing each January 1 and
ending the following December 31.
2.15 "Qualified 401(k) Plan" means the 20th Century Industries Savings
and Security Plan, as in effect from time to time.
2.16 "Separation from Service" means any separation from service of the
Company for any reason, including termination of employment, retirement, death
or disability. In the case of a Participant on disability, Separation from
Service shall be deemed to occur when long term disability coverage commences,
unless otherwise determined by the Committee.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY TO PARTICIPATE
(a) Each Eligible Employee shall become a Participant hereunder upon
delivery to the Committee, such properly completed enrollment forms and
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agreements as the Committee may require, including, but not limited to, a
beneficiary designation form and a form electing the manner in which
distributions will be payable with respect to such Participant's Account
hereunder, as provided in Section 3.2 below.
(b) Commencement or recommencement of active participation following
any Separation from Service or other interruption of employment shall be
on such terms and under such conditions as the Committee may, in its
discretion, provide.
3.2 ELECTION OF PAYMENT METHOD
A Participant's Account shall be payable from the Plan in a lump sum and/
or in twenty (20) quarterly installments, as elected by the Participant prior
to the effective date a of a Compensation Deferral Agreement, but not more
frequently than prior to the first day of a "Fixed Payment Election Period,
as defined below. A Participant's method of payment election shall be subject
to the limitations and restrictions of this Section 3.2 and rules prescribed
by the Committee.
(a) Any Participant's election of a method of payment shall apply to
all amounts attributable Compensation Deferrals and Matching Credits
allocated to his Account during the applicable Fixed Payment Election
Period. A Participant may make new method of payment election prior to
the start of a new Fixed Payment Election Period, which election shall
apply to all amounts attributable to Compensation Deferrals and Matching
Credits allocated to his or her Account during such new following Fixed
Payment Election Period. If a Participant fails to file a new method of
payment election prior to the start of his or her new Fixed Payment
Election Period, to the extent determined by the Committee, the method of
payment election in effect for the prior Fixed Payment Election Period
shall be deemed to remain in effect for the new Fixed Payment Election
Period.
(b) For purposes of this Plan, "Fixed Payment Election Period" for
any Participant shall mean each three (3) consecutive Plan Year period
starting with the Plan Year that includes his or her Eligibility Date,
and each following three (3) consecutive Plan Year period commencing on
the first day of the Plan Year immediately following the end of the prior
Fixed Payment Election Period, regardless of whether he or she elects to
make Compensation Deferrals for any or all such Plan Years.
(c) Any election of payment method applicable to a Fixed Payment
Election Period shall be irrevocable unless the Committee, in its sole
discretion, permits an Eligible Employee to change his or her election of
payment method to a method providing payments over a longer period of
time than originally elected by the Eligible Employee and which will not
reasonably result in any increase in the amount otherwise payable in any
taxable year of the Participant during which payment would have been made
under the method of payment previously elected. No payment option shall
be selected by a Participant which is not among a list of payment options
generally made available to all Participants by the Committee at the time
of such selection. No assurance regarding the tax effects of making such
change is provided to a participant who elects to change a form of
payment.
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ARTICLE IV
COMPENSATION DEFERRALS BY PARTICIPANTS
4.1 PARTICIPANT COMPENSATION DEFERRALS
In order to be eligible to make Participant Compensation Deferrals for
any Plan Year an Eligible Employee must have become a Participant as provided
in Article III, and must have filed with the Committee a properly completed
Compensation Deferral Agreement, subject to the following conditions:
(a) If an Eligible Employee has become a Participant prior to the
first day of the Plan Year, the Compensation Deferral Agreement must be
filed with the Committee prior to the first day of the Plan Year for
which it is to be effective on such date as is prescribed by the
Committee.
(b) If an employee of the Company first becomes an Eligible Employee
during a Plan Year, any Compensation Deferral Agreement for that Plan
Year must be filed with the Committee within thirty (30) days after the
Committee notifies such employee in writing that he or she is an Eligible
Employee.
(c) The Eligible Employee's compensation deferral election under the
Qualified 401(k) Plan as of the effective date of the Compensation
Deferral Agreement (or if later, the date of such Eligible Employee's
first date of eligibility to join the Qualified 401(k) Plan) equals the
maximum level of contribution permitted under the terms of the Qualified
401(k) Plan.
4.2 AMOUNTS OF PARTICIPANT COMPENSATION DEFERRALS
Participant Compensation Deferrals may be any percentage of the
Participant's Compensation that is not in excess of the Maximum Excess
Percentage. The Committee may, in its discretion, require Participant
Compensation Deferrals to be in whole percentages.
For purposes of this Section 4.2, the following terms shall have the
meaning set forth in this Section 4.2:
1. The term "Maximum Excess Percentage" for a Plan Year means the
percentage equal to (a) twelve percent less (b) the Qualified 401(k) Plan
Maximum Percentage for such Plan Year.
2. The term "Qualified 401(k) Plan Maximum Percentage" for a Plan
Year for a Participant means the Percentage of Compensation representing
the maximum anticipated employee deferral under the Qualified 401(k) Plan
for such Participant, determined by dividing (a) the dollar amount of
such maximum anticipated employee deferral under the Qualified 401(k)
Plan by (b) the Participant's Compensation.
Notwithstanding the foregoing, the Committee may modify the
foregoing rules to the extent that it deems necessary to carry out the
purpose and intent of this Plan, provided, however, that in all cases,
deferrals under this Plan shall be consistent with the requirements of
Treas. Reg. Section 1.401(k)-1(e)(6), so that deferrals hereunder are
dependent upon an employee's having made the maximum elective deferrals
or contributions permitted under the Qualified 401(k) Plan.
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4.3 PROVISIONS OF COMPENSATION DEFERRAL AGREEMENT
A Participant Compensation Deferral Agreement under this Plan for a Plan
Year shall be subject to the following conditions as if each of such
conditions were fully set forth in such agreement:
(a) A Participant electing to defer compensation shall be deemed to
have waived any right to effect a hardship withdrawal from the Qualified
401(k) Plan, to the extent determined appropriate by the Committee to
comply with the requirements of Section 401(k) of the Code and federal
income tax rules regarding the deferral of compensation;
(b) A Participant Compensation Deferral Agreement for a Plan Year
shall remain in effect throughout the Plan Year and shall not be subject
to change by the Participant during such year. Not later than the last
day of a Plan Year and in accordance with rules prescribed by the
Committee, a Participant may file a new Compensation Deferral Agreement
or cease Participant Compensation Deferrals, to be effective as of the
first day of the following Plan Year. If a Participant fails to file a
new Compensation Deferral Agreement prior to the first day of a Plan Year
or to notify the Committee of an election to cease future Participant
Compensation Deferrals, to the extent determined by the Committee, the
Participant Compensation Agreement in effect for the prior Plan Year
shall be deemed to remain in effect for the following Plan Year.
(c) Compensation deferrals pursuant to a Participant Compensation
Deferral Agreement may be deducted from a Participant's compensation at
such times throughout the deferral period as are administratively
practicable, as determined by the Committee in its sole discretion;
provided, however, that the Committee may permit a Participant's
Compensation Deferral Agreement to express a preference whether (a)
Participant Compensation Deferrals under this Plan shall be taken from
the Participant's Compensation only after the maximum deferral has been
contributed with respect to such Participant to the Qualified 401(k)
Plan, or (b) Participant Compensation Deferrals shall be taken from the
Participant's Compensation in such manner as to result in total
deductions with respect to this Plan and the Qualified 401(k) Plan being
in approximately equal amounts for each payroll period over the Plan
Year, or (c) Participant Compensation Deferrals under this Plan shall be
taken from the Participant's Compensation in another manner that is
administratively practicable.
(d) To the extent that the value of a Participant's Account is
permitted, at the discretion of the Committee, to be determined by
reference to one or more indices designated by the Participant from time
to time, neither the Company, the Committee nor any person other than
such Participant shall have responsibility or liability for any adverse
economic consequences or loss resulting from the Participant's
designation.
ARTICLE V
COMPANY MATCHING CREDITS
5.1 MATCHING CREDITS
Subject to the requirements and restrictions of this Article V, and
subject also to the amendment or termination of the Plan, as of each date that
a Participant Compensation Deferral is deducted from the Compensation of a
Participant, 20th Century Industries, Inc. shall credit a Matching Credit to
the Matching Credit Subaccount of such Participant in an
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amount equal to seventy-five percent (75%) of the amount by which the sum of
(a) and (b) exceeds (c), where (a) equals such Participant's Compensation
Deferrals under this Plan, (b) equals such Participant's deferrals under the
Qualified 401(k) Plan for such year, and (c) equals matching amounts credited
to the Participant's account for such Plan Year under the Qualified 401(k)
Plan; provided, however, that in no event shall such Matching Credit exceed
seventy-five percent (75%) of the first six percent (6%) of a Participant's
Compensation paid during a period that such Participant is eligible to defer
amounts under the Qualified 401(k) Plan (determining such eligibility without
regard to statutory limitations on compensation or deferrals) less matching
amounts credited to the Participant's Account for such Plan Year under the
Qualified 401(k) Plan.
ARTICLE VI
PARTICIPANT ACCOUNTS AND SUBACCOUNTS
6.1 PARTICIPANT ACCOUNTS AND SUBACCOUNTS
(a) A Participant's Compensation Deferrals shall be credited to the
Participant's Compensation Deferral Subaccount. Such crediting shall
occur as soon as practicable after the payroll period or other period to
which such amounts relate.
(b) Matching Credits with respect to such Participant shall be
credited to such Participant's Matching Credits Subaccount. Such
crediting shall occur as of the date of crediting the Participant
Compensation Deferrals to which such amounts relate.
(c) A Participant's Account under the Plan shall consist of the sum
of the Participant's Compensation Deferral Subaccount and the Participant's
Matching Credits Subaccount, subject to adjustments as provided in
Section 6.2.
6.2 VALUATION OF ACCOUNT
(a) Accounts under this Plan shall, provided in Section 2.1 and
Article XIV, consist solely of bookkeeping entries on the books of the
Company which shall be adjusted not less frequently than the last
business day of each month to reflect the crediting of earnings, gains
and losses. Not less frequently than quarterly, the Committee shall
furnish each Participant with a statement of such Participant's Account,
and each Subaccount therein.
(b) For purposes of determining the value of a Participant s
Account, the Committee may, in its discretion, permit a Participant to
designate one or more indices made available by the Committee as the
applicable investment return measurement. Such indices may, if determined
by the Committee, correspond to investment fund options generally
available under the Qualified 401(k) Plan, but shall not include stock or
other securities issued by the company or an affiliate thereof. In
accordance with rules prescribed by the Committee, a Participant may
change his or her investment fund designation for future Participant
Compensation Deferrals and Matching Credits and/or existing Account
balances once during each calendar quarter. Notwithstanding the
foregoing, neither the Company nor the Committee or any other person
shall have any responsibility or liability to invest assets of the
Company in accordance with any such designation by the Participant, nor
shall the Company or the Committee or any other person have any
responsibility in valuing any Participant's Account to give effect to any
such designation by a Participant, other than on such basis as is
determined to be administratively practicable by the Company.
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ARTICLE VII
PAYMENT OF BENEFITS
7.1 VESTING OF BENEFITS
(a) A Participant's interest in his or her Compensation Deferral
Subaccount shall be fully vested and nonforfeitable at all times.
(b) A Participant's interest in his or her Matching Credits
Subaccount shall become vested and nonforfeitable in accordance with the
provisions of the Qualified 401(k) Plan applicable to vesting in the
value of matching contributions under such Plan (including provisions of
the Qualified 401(k) Plan relating to vesting upon termination, partial
termination or other vesting event under such plan). Notwithstanding
provisions of the preceding provisions of this Section 7.1(b), in the
event of a Participant's Separation of Service following a "Change in
Control" as such term is defined from time to time in the 20th Century
Industries Supplemental Executive Retirement Plan, a Participant's
interest in his or her Matching Credits Subaccount shall become fully
vested and nonforfeitable.
7.2 FORM AND DATE OF PAYMENT
Except as provided in Section 7.3 or Article IX, no portion of a
Participant s Account under this Plan shall be paid to any person prior to a
Participant's Separation from Service. Following Separation from Service
payment of a Participant's vested interest in his or her Account under this
Plan shall be made in accordance with such method payment elections as the
Participant has made in accordance with Article III of this Plan, commencing
as soon as practicable following such Separation from Service, provided,
however, that at the sole discretion of the Committee and notwithstanding any
prior election by the Participant for a lump sum distribution of any portion
of the Participant's Account, distribution of the entire Account balance may
be made in substantially equal quarterly payments over a period of five (5)
years.
For purposes of this Section 7.2, payments shall reflect the valuation of
a Participant's Account as of the end of the most recent complete valuation
date preceding payment, or such other, more recent, valuation date as is
determined by the Committee in its sole discretion, to be administratively
practicable.
7.3 HARDSHIP DISTRIBUTIONS
Upon application submitted to the Committee in such form and manner as
the Committee may prescribe, an amount may be distributable to a Participant
prior to the date of distribution specified in Section 7.2 above, provided
that the Committee determines, in its sole discretion, that the distribution
is on account of an "unforseeable emergency," as defined below in this Section
7.3, and provided further that a determination is made by the Committee that
such distribution will not result in constructive receipt of income by any
Participant for federal income tax purposes, or otherwise affect the federal
income tax treatment of the Plan. In making such determination as to tax
matters, the Committee may engage and rely upon opinions rendered by, tax
experts selected or approved by the Committee.
For purposes of this Section 7.3, the term "unforeseeable emergency"
shall mean severe financial hardship to the Participant resulting from a
sudden and unexpected illness or accident of the Participant or of a dependent
(as defined in section 152(a) of the Code) of the Participant, loss of the
Participant's property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
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control of the Participant. The circumstances that will constitute an
unforeseeable emergency will depend upon the facts of each case, but, in any
case, payment may not be made to the extent that such hardship is or may be
relieved -- (i) through reimbursement or compensation by insurance or
otherwise or (ii) by liquidation of the Participant's assets, to the extent
the liquidation of such assets would not itself cause severe financial
hardship.
ARTICLE VIII
DEATH BENEFITS
In the event of the death of a Participant, the undistributed portion of
the Participant's vested interest in his or her Account shall be payable in a
single lump sum to the beneficiary designated by the Participant for this
purpose. Such payment shall be made as soon as practicable following
verification of death and verification of the proper payee(s). If no
beneficiary is then living, no beneficiary can be located, or none has been
designated, any amount then payable shall be paid to such persons as would be
entitled to payment under provisions of the Qualified 401(k) Plan as then in
effect pertaining to the identity of payees in the event of a failure to
designate a beneficiary under such plan. This Plan shall not be required to
give effect to disclaimers, whether made under state or federal law.
Each Participant shall have the opportunity, from time to time, to
designate one or more beneficiaries, but no such designation shall be
effective unless such designation is made on forms prescribed for such purpose
by the Committee, and such designation is received by the Committee prior to
the date of the Participant's death. It is each Participant's sole
responsibility to obtain such consents, and to take such other actions as may
be necessary or appropriate in connection with participation in this Plan and
in connection with the designation of any beneficiary, including but not
limited to obtaining spousal or other consents, as may be necessary or
appropriate to reflect marital property, support, or other obligations arising
under contract, order or by operation of law.
ARTICLE IX
RIGHT TO TERMINATE OR MODIFY PLAN
By action of the Board of Directors of 20th Century Industries or its
delegate, 20th Century Industries, Inc. may modify or terminate this Plan
without further liability to any Eligible Employee or former employee or any
other person. Notwithstanding the preceding provisions of this Article IX,
except as expressly required by law, this Plan may not be modified or
terminated as to any Participant in a manner that adversely affects the
payment of benefits theretofore accrued by such Participant, except that in
the event of the termination of the Plan as to all Participants, this Plan may
in the sole discretion of the Board or its delegate be modified to accelerate
payment of benefits to Participants.
ARTICLE X
NO ASSIGNMENT, ETC.
Benefits under this Plan may not be assigned or alienated and shall not
be subject to the claims of any creditor. A Participant shall not be permitted
to borrow from an Account under the Plan, nor shall a Participant be permitted
to pledge or otherwise use his Account under the Plan as security for any loan
or other obligation. No payments shall be made to any person or persons other
than expressly provided herein, or on any date or dates other than as
expressly provided herein.
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ARTICLE XI
THE COMMITTEE
(a) The appointment, removal and resignation of members of the
Committee shall be governed by the Board of Directors of 20th Century
Industries, Inc. Subject to change by the said Board, the membership of
the Committee shall be the same as the membership of the Committee of the
Qualified 401(k) Plan.
(b) The Committee shall have authority to oversee the management and
administration of the Plan, and in connection therewith is authorized in
its sole discretion to make, amend and rescind such rules as it deems
necessary for the proper administration of the Plan, to make all other
determinations necessary or advisable for the administration of the Plan
and to correct any defect or supply any omission or reconcile any
inconsistency in the Plan in the manner and to the extent that the
Committee deems desirable to carry the Plan into effect. The powers and
duties of the Committee shall include without limitation, the following:
(i) Resolving all questions relating to the eligibility of
select management and highly compensated employees to become
Participants; and
(ii) Resolving all questions regarding payment of benefits
under the Plan and other questions regarding plan participation.
Any action taken or determination made by the Committee shall be
conclusive on all parties. The exercise of or failure to exercise any
discretion reserved to the Committee to grant or deny any benefit to a
Participant or other person under the Plan shall in no way require the
Committee or any person acting on behalf thereof, to similarly exercise or
fail to exercise such discretion with respect to any other Participant.
ARTICLE XII
RELEASE
As a condition to making any payment under the Plan, or to giving effect
to any beneficiary designation or other election or other action under the
Plan by any Participant or any other person, the Plan Administrator may
require such consents or releases as it determines to be appropriate, and
further may require any such designation, election or other action to be in
writing, in a prescribed form and to be filed with the Committee in a manner
prescribed by the Committee. In the event the Committee determines, in its
discretion, that multiple conflicting claims may be made as to all or a part
of the same Account, the Committee may delay the making of any payment until
such conflict or multiplicity of claims is resolved.
ARTICLE XIII
NO CONTRACT OF EMPLOYMENT
This Plan shall not be deemed to give any employee the right to be
retained in the employ of the Company or to interfere with the right of the
Company to discharge or retire any employee at any time, nor shall this Plan
interfere with the right of the Company to establish the terms and conditions
of employment of any employee.
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ARTICLE XIV
COMPANY'S OBLIGATION TO PAY BENEFITS
Nothing contained in this Plan and no action taken pursuant to the
provisions of this Plan shall create or be construed to create a trust of any
kind, or a fiduciary relationship between the Company, and any Employee, an
Employee's beneficiary(ies) or any other person. Any compensation deferred
under the provisions of this Plan shall continue for ail purposes to be a part
of the general funds of the Company. To the extent that any person acquires a
right to receive payments from the Company under this Plan such right shall be
no greater than the right of any unsecured general creditor of the Company.
Notwithstanding the preceding provisions of this Article XIV, assets may be
transferred by the Company to a trust constituting a "rabbi trust," for the
purpose of providing benefits described herein.
ARTICLE XV
CLAIM REVIEW PROCEDURE
(a) A person who believes that he or she has not received all
payments to which he or she is entitled under the terms of this Plan may
submit a claim therefor. Within ninety (90) days following receipt of a
claim for benefits under this Plan, and all necessary documents and
information, the Committee or its authorized delegate reviewing the claim
shall, if the claim is not approved, furnish the claimant with written
notice of the decision rendered with respect to the application.
(b) The written notice contemplated in (a) above shall set forth:
(i) the specific reasons for the denial, with reference to the
Plan provisions upon which the denial is based;
(ii) a description of any additional information or material
necessary for perfection of the application (together with an
explanation why the material or information is necessary); and
(iii) an explanation of the Plan's claim review procedure.
(c) A claimant who wishes to contest the denial of his claim for
benefits or to contest the amount of benefits payable to him shall follow
the procedures for an appeal of benefits as set forth below, and shall
exhaust such administrative procedures prior to seeking any other form of
relief.
(d) A claimant who does not agree with the decision rendered as
provided above in this Article XV with respect to his application may
appeal the decision to the Committee. The appeal shall be made, in
writing, within sixty (60) days after the date of notice of such decision
with respect to the application. If the application has neither been
approved nor denied within the ninety-day (90) period provided in (a)
above, then the appeal shall be made within sixty (60) days after the
expiration of the ninety-day (90) period.
(e) The claimant may request that his application be given full and
fair review by the Committee. The claimant may review all pertinent
documents and submit issues and comments in writing in connection with
the appeal. The decision of the Committee shall be made promptly, and not
later than sixty (60) days after the Committee's receipt of a request for
review, unless special circumstances require an extension of time for
processing, in which case a decision shall be
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rendered as soon as possible, but not later than one hundred twenty (120)
days after receipt of a request for review. The decision by the
Committee on review shall be in writing and shall include specific
reasons for the decision, written in a manner calculated to be
understood by the claimant with specific reference to the pertinent
Plan provisions upon which the decision is based.
ARTICLE XVI
ARBITRATION
A claimant may contest the Committee s denial of his or her appeal only
by submitting the matter to arbitration. In such event, the claimant and the
Committee shall select an arbitrator from a list of names supplied by the
American Arbitration Association in accordance with such Association's
procedures for selection of arbitrators, and the arbitration shall be
conducted in accordance with the rules of such Association. The arbitrator's
authority shall be limited to the affirmance or reversal of the Committee s
denial of the appeal, and the arbitrator shall have no power to alter, add to
or subtract from any provision of this Plan. Except as otherwise required by
the Employee Retirement Income Security Act of 1974, the arbitrator's decision
shall be final and binding on all parties, if warranted on the record and
reasonably based on applicable law and the provisions of this Plan.
ARTICLE XVII
MISCELLANEOUS
17.1 SUCCESSOR AND ASSIGNS
The Plan shall be binding upon and shall inure to the benefit of the
Company, its successors and assigns, and all Participants.
17.2 NOTICES
Any notice or other communication required or permitted under the Plan
shall be in writing, and if directed to the Company shall be sent to the
Committee or its authorized delegate, and if directed to a Participant shall
be sent to such Participant at his last known address as it appears on the
records of the Company.
17.3 LIMITATIONS ON LIABILITY
(a) The Company does not warrant any tax benefit nor any financial
benefit under the Plan. Without limitation to the foregoing, the Company
and its officers, employees and agents shall be held harmless by the
Participant or Beneficiary from, and shall not be subject to any
liability on account of, the federal or state or local income tax
consequences, or any other consequences of any deferrals or credits with
respect to Participants under the Plan.
(b) The Company, its officers, employees, and agents shall be held
harmless by the Participant from, and shall not be subject to any
liability hereunder for, all acts performed in good faith.
17.4 CERTAIN SMALL BENEFITS
Notwithstanding any other provision of this Plan to the contrary, in the
case of a Participant whose Account hereunder is not in Supplemental of One
Thousand Dollars ($1,000) and who ceases to make Participant Compensation
Deferrals, the Committee
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may, in its sole discretion, distribute the Participant's entire vested
interest in the Account, in lieu of any further benefit under this Plan.
17.5 GOVERNING LAW
This Plan and any Participant Compensation deferral agreement hereunder
are subject, to the laws of the State of California, to the extent not
preempted by ERISA.
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IN WITNESS WHEREOF, 20th Century Industries has caused this instrument to
be executed by its duly authorized officers, effective as of the Effective
Date set forth hereinabove.
20TH CENTURY INDUSTRIES
DATE: January 3, 1996 By: /s/ RICHARD A. ANDRE
---------------------------- ------------------------------
By: /s/ JOHN R. BOLLINGTON
------------------------------
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