Exhibit 10.23
FAIRCHILD BENEFIT RESTORATION PLAN
Effective March 10, 1997
FAIRCHILD BENEFIT RESTORATION PLAN
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS.................................................1
ARTICLE II - ELIGIBILITY................................................3
2.01 Eligibility....................................................3
ARTICLE III - BENEFITS..................................................3
3.01 Benefits.......................................................3
3.02 Savings Restoration Amount.....................................3
3.03 Matching Restoration Amount....................................4
3.04 Participant's Account..........................................4
3.05 Allocation to Participant Account and Interest.................4
ARTICLE IV - DISTRIBUTION OF BENEFIT....................................4
4.01 Separation from Service........................................4
4.02 Hardship.......................................................5
ARTICLE V - ADMINISTRATION; AMENDMENTS AND TERMINATION;
RIGHTS AGAINST THE COMPANY..............................................5
5.01 Administration.................................................5
5.02 Amendment and Termination......................................5
5.03 Rights Against the Employer....................................6
ARTICLE VI - GENERAL AND MISCELLANEOUS..................................6
6.01 Spendthrift Clause.............................................6
6.02 Severability...................................................6
6.03 Construction of Plan...........................................6
6.04 Gender.........................................................6
6.05 Governing Law..................................................6
6.06 Unfunded Top Hat Plan..........................................7
6.07 Divestment for Cause...........................................7
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FAIRCHILD BENEFIT RESTORATION PLAN
THIS BENEFIT RESTORATION PLAN ("Plan") is adopted by FSC Semiconductor
Corporation, a corporation organized and existing under the laws of the State of
Delaware, (hereinafter referred to as the "Employer"), effective as of March 10,
1997.
WITNESSETH:
WHEREAS, the Employer desires to establish a benefit restoration income
plan for the exclusive benefit of certain participants in the Fairchild
Semiconductor Corporation Personal Savings and Retirement Plan (the "Retirement
Plan") so as to reward them for their loyal and faithful service to the Employer
and to aid them in increasing their economic security by providing additional
funds at retirement with respect to those benefits that are reduced because of
the limitations of Sections 401(a)(17), 402(g)(1), 401(k) and 415 of the
Internal Revenue Code of 1986, as amended; and
WHEREAS, the Employer has been authorized by its Board of Directors to adopt
this Plan in order to provide for the benefits specified; and
WHEREAS, this Plan is intended to be an unfunded plan primarily for the
benefit of a select group of management or highly compensated employees, so
as to fall within the "top-hat" plan exemption from most ERISA regulation;
NOW, THEREFORE, in consideration of the premises herein contained, it is
hereby declared as follows:
ARTICLE 1 -
DEFINITIONS
When used herein, the words and phrases defined hereinafter shall have the
following meaning unless a different meaning is clearly required by the context.
1.01 "Account" shall mean the Accounts and subaccounts established pursuant
to Section 3.05 of the Plan.
1.02 "Beneficiary" shall mean the person or persons last designated by a
Participant, by written notice filed with the Committee, to receive a Plan
benefit upon his or her death. In the event a Participant fails to designate a
person or persons as provided above or if no Beneficiary so designated survives
the Participant, then for all purposes of this Plan, the Beneficiary shall be
the person(s) designated as the beneficiaries by the Participant under the
Retirement Plan, and, if none, the Participant's estate. The Beneficiary of a
married Participant shall be the Participant's spouse unless the spouse consents
in writing to the Participant's designation of some other Beneficiary.
1.03 "Board" shall mean the Board of Directors of FSC Semiconductor
Corporation, or of any corporate successor or assign.
1.04 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.05 "Committee" shall mean the Retirement Plan Administrative Committee,
as determined by the Board.
1.06 "Elected Contribution" shall mean the amount the Participant agrees to
defer under this Plan, pursuant to procedures established by the Committee, up
to the maximum permitted deferral pursuant to Section 3.02 of the Plan.
1.07 "Employer" shall mean FSC Semiconductor Corporation, or any successor
or assign that adopts or assumes the Plan. For purposes of all Plan Sections
except 5.02, the term "Employer" also shall refer to any subsidiary or affiliate
of FSC Semiconductor Corporation which adopts the Plan with the approval of FSC
Semiconductor Corporation.
1.08 "Interest" shall mean the rate for long-term A-rated corporate bonds,
reported by the investment banking firm of Salomon Brothers of New York City (or
such other investment banking firm as the Committee may specify) during the
first week of each Plan Year. The interest rate will be reset at the beginning
of each Plan Year.
1.09 "Matching Restoration Amount" shall mean the amount determined in
accordance with Section 3.03 of the Plan.
1.10 "Participant" shall mean an employee of the Employer participating in
the Retirement Plan, who satisfies the eligibility requirements of Section 2.01
of the Plan and such other conditions that are established from time to time by
the Committee.
1.11 "Plan" shall mean the Fairchild Benefit Restoration Plan, as set forth
in this document and as amended from time to time.
1.12 "Plan Year" shall mean the twelve consecutive month period ending on
the last day of May, which period also corresponds to the Employer's fiscal
year. The first Plan Year, however, shall be a short year beginning on the
effective date of the Plan and ending on the last day of the Employer's
then-current fiscal year.
1.13 "Retirement Plan" shall mean the Fairchild Personal Savings and
Retirement Plan, effective March 10, 1997 (as it may subsequently be amended).
1.14 "Savings Restoration Amount" shall mean the amount determined in
accordance with Section 3.02 of the Plan.
1.15 Capitalized Terms not defined herein shall have the meaning attributed
to them in the Retirement Plan.
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ARTICLE II -
ELIGIBILITY
2.01 Eligibility.
An employee of the Employer who is participating in the Retirement Plan
shall be eligible to participate in this Plan if the employee (i) elects a
salary deferral contribution to the Retirement Plan which equals or exceeds the
maximum such contribution that employee is legally permitted to make to the
Retirement Plan, and (ii) is an exempt status employee in job grade 9 or higher
with the Employer. An employee who is eligible for this Plan may participate in
the Plan by filing a written salary deferral contribution election under this
Plan in accordance with Section 3.02. Once an employee commences participation
in this Plan he shall remain a Participant until no account balance remains in
his name under the Plan, but the Participant shall not be eligible to elect
salary deferral contributions to this Plan for any Plan Year or portion thereof
for which (i) the Participant is not making the maximum permissible salary
deferral contribution under the Retirement Plan, or (ii) the Participant does
not satisfy the job grade and exempt status eligibility conditions stated above.
ARTICLE III -
BENEFITS
3.01 Benefits.
Except as provided in Sections 4.02 and 6.07, a Participant's benefit under
the Plan shall equal the final balance of the Participant's Accounts as
determined upon the date or event which triggers his right to a benefit
distribution. All benefit distributions shall be made in accordance with
Article IV.
3.02 Savings Restoration Amount.
The maximum Savings Restoration Amount from which an eligible Participant may
make an Elected Contribution for a Plan Year shall be equal to the difference,
if any, between (a) and (b) below:
(a) The maximum salary deferral contribution the Participant could make
under the Retirement Plan but for the statutory limits on compensation and
deferral amounts from time to time applicable to the Retirement Plan; less
(b) The amount of the Participant's actual deferral contribution allocated
to his credit under the Retirement Plan for the Plan Year.
The Participant's Savings Restoration Amount shall be equal to the
Participant's Elected Contribution for the Plan Year. The Participant's
election shall be made in writing, signed by the Participant and filed with the
Committee prior to its taking effect. Each deferral election shall apply only
to payroll periods commencing after the date the election is filed, and may be
changed
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by a superseding election of the Participant at any time. Any Participant who
suspends deferrals during a Plan Year may not resume such deferrals before the
next Plan Year.
3.03 Matching Restoration Amount.
The Matching Restoration Amount which shall be credited to a Participant's
Account for a Plan Year shall equal the difference between the matching
contribution actually credited to his account under the Retirement Plan for that
Plan Year (as adjusted, if necessary, for legal limits) and the matching
contribution that would have been made to his Retirement Plan account, based on
his aggregate salary deferrals for the Plan Year to the Retirement Plan and this
Plan, but for the statutory limits applicable to matching contributions under
the Retirement Plan.
3.04 Participant's Account.
The Committee shall create and maintain adequate records to reflect the
interest of each Participant in the Plan. Such records shall be in the form of
individual Accounts. When appropriate, a Participant's Account shall consist of
a savings restoration account, a matching restoration account, a transfer
account, and any other account or subaccounts deemed necessary by the Committee.
Such Accounts shall be kept for recordkeeping purposes only and shall not be
construed as providing for assets to be held in trust or escrow or any other
form of asset segregation for the Participant or Beneficiary to whom benefits
are to be paid pursuant to the terms of the Plan.
3.05 Allocation to Participant Account and Interest.
The Participant's Savings Restoration Amount shall be credited to the
Participant's Account as of the date such amount would have been paid to such
Participant as remuneration for services, and the Participant's Matching
Restoration Amount shall be credited to the Participant's Account as of the last
day of the Plan Year. The Participant's balance in his Accounts shall be
credited with Interest, in accordance with Section 1.08, at such times and in
such manner as determined in the sole discretion of the Committee.
ARTICLE IV -
DISTRIBUTION OF BENEFIT
4.01 Separation from Service.
In the event of a Participant's termination of employment with the Employer
for any reason (including retirement, disability or death), the final balance of
his Accounts shall be distributed in cash in a single sum not later than sixty
(60) days after the close of the Plan Year in which such termination occurs. If
the Participant elects to forfeit his contribution and Interest allocations for
that Plan Year, then his reduced benefit shall be accelerated and distributed
within sixty (60) days after such election is filed. Any Participant also may
elect an earlier distribution of his savings restoration account (the balance of
his Savings Restoration Amounts, adjusted for Interest and any prior
withdrawals) as of a date preselected by the Participant on a written
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election that becomes valid and effective on (but not before) the day after the
one-year anniversary of its making.
4.02 Hardship.
Payment of part or all of the benefits under this Plan may be accelerated
in the case of severe hardship, which shall mean an emergency or unexpected
situation in the Participant's financial affairs, including, but not limited to,
illness or accident involving the Participant or any of the Participant's
dependents. All payments in case of hardship must be approved in advance by the
Committee. Hardship distributions may, upon request, include an amount
estimated to cover the income tax attributable to the hardship withdrawal.
ARTICLE V -
ADMINISTRATION; AMENDMENTS AND TERMINATION;
RIGHTS AGAINST THE COMPANY
5.01 Administration.
The Committee shall administer this Plan. With respect to the Plan, the
Committee shall have, and shall exercise and perform, in its sole discretion,
all the powers, rights, authorities and duties set forth in the Retirement Plan
with the same effect as if set forth in full herein with respect to this Plan
(but without modifying any of the substantive benefit rights of Participants set
forth in this Plan). Except as expressly set forth herein, any determination or
decision by the Committee shall be conclusive and binding on all persons who at
any time have or claim to have any interest whatever under this Plan.
5.02 Amendment and Termination.
The Employer, solely, and without the approval of the Committee or any
Participant or Beneficiary, shall have the right to amend this Plan at any time
and from time to time, by a written instrument adopted by the Employer's Board
of Directors or any delegatee of that Board for this purpose. Any such amendment
shall become effective upon the date stated therein. Notwithstanding the
foregoing, no amendment shall adversely affect the rights of any Participant or
Beneficiary who was previously receiving benefits under this Plan to continue to
receive such benefits or of all other Participants and Beneficiaries to receive
the benefits promised under the Plan immediately prior to the later of the
effective date or the date of adoption of the amendment.
The Employer has established this Plan with the bona fide intention and
expectation that it will deem it advisable to continue the Plan in effect
indefinitely. However, circumstances not now foreseen or circumstances beyond
the Employer's control may make it impossible or inadvisable to continue the
Plan. Therefore, the Employer, in its sole discretion, reserves the right to
terminate the Plan, in whole or in part, for any reason and at any time;
provided, however, that in such event any Participant or Beneficiary who was
receiving benefits under this Plan as of the termination date shall continue to
receive such benefits, and all other Participants and Beneficiaries shall
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remain entitled to receive the benefits promised under the Plan immediately
prior to the termination of the Plan.
5.03 Rights Against the Employer.
The establishment of this Plan shall not be construed as giving to any
Participant, Beneficiary, employee or any person whomsoever, any legal,
equitable or other rights against the Employer, or its officers, directors,
agents or shareholders, except as specifically provided for herein, or as giving
to any Participant or Beneficiary any equity or other interest in the assets,
business or shares of the Employer, or as giving any employee the right to be
retained in the employment of the Employer. All employees and Participants shall
be subject to discharge to the same extent that they would have been if this
Plan had never been adopted. Subject to the rights of the Employer to terminate
this Plan or any benefit hereunder, the rights of a Participant or Beneficiary
hereunder shall be solely those of an unsecured creditor of the Employer.
ARTICLE VI -
GENERAL AND MISCELLANEOUS
6.01 Spendthrift Clause.
No right, title or interest of any kind in the Plan shall be transferable
or assignable by any Participant or Beneficiary or any other person or be
subject to alienation, anticipation, encumbrance, garnishment, attachment,
execution or levy of any kind, whether voluntary or involuntary. Any attempt to
alienate, sell, transfer, assign, pledge, garnish, attach or otherwise encumber
or dispose of any interest in the Plan shall be void.
6.02 Severability.
In the event that any provision of this Plan shall be declared illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining provisions of this Plan but shall be fully severable, and this Plan
shall be construed and enforced as if said illegal or invalid provision had
never been inserted herein.
6.03 Construction of Plan.
The article and section headings and numbers are included only for
convenience of reference and are not to be taken as limiting or extending the
meaning of any of the terms and provisions of this Plan. Whenever appropriate,
words used in the singular shall include the plural or the plural may be read as
the singular.
6.04 Gender.
The personal pronoun of the masculine gender shall be understood to apply
to women as well as men, except where specific reference is made to one or the
other.
6.05 Governing Law.
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The validity and effect of this Plan and the rights and obligations of all
persons affected hereby shall be construed and determined in accordance with the
laws of the United States and the laws of the State of Delaware, without regard
to its otherwise applicable principles of conflicts of laws.
6.06 Unfunded Top Hat Plan.
It is the Employer's intention that this Plan be a Top Hat Plan, defined as
an unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
as provided in Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended from time to time. The
Employer may establish and fund one or more trusts for the purpose of paying
some or all of the benefits promised to Participants and Beneficiaries under the
Plan; provided, however, that (i) any such trust(s) shall at all times be
subject to the claims of the Employer's general creditors in the event of the
insolvency or bankruptcy of the Employer, and (ii) notwithstanding the creation
or funding of any such trust(s), the Employer shall remain primarily liable for
any obligation hereunder. Notwithstanding the establishment of any such
trust(s), the Participants and Beneficiaries shall have no preferred claim on,
or any beneficial ownership interest in, any assets of any such trust or of the
Employer.
6.07 Divestment for Cause.
Notwithstanding any other provisions of this Plan to the contrary, the
right of any Participant, former Participant or Beneficiary of either to receive
or to have paid to any other person, or the right of any such other person to
receive any benefits attributable to the Matching Restoration Amount plus
Interest hereunder, shall be forfeited, if such Participant's employment with
the Employer is terminated because of or the Participant is discovered to have
engaged in fraud, embezzlement, dishonesty or criminality against (or adversely
affecting) the Employer, obtaining funds or property under false pretenses,
assisting a competitor without permission, interfering with the relationship of
the Employer or any subsidiary or affiliate thereof with a customer, breaching
any employment policies or employment-related agreement with the Employer, or
failing to carry out any significant task assigned to him as an Employee or to
otherwise perform his duties for the Employer. A Participant's or Beneficiary's
benefits shall be forfeited for any of the above reasons regardless of whether
such act is discovered prior to or subsequent to the Participant's termination
from the Employer or the payment of benefits under the Plan. If payment has been
made, such payment shall be restored to the Employer by the Participant or
Beneficiary.
IN WITNESS WHEREOF, this Benefit Restoration Plan, having been first duly
adopted, is hereby executed below by a duly authorized officer of the Employer
on this 10th day of March, 1997, to take effect as provided herein.
FSC SEMICONDUCTOR CORPORATION
By:
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Print Name:
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Its President
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