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Exhibit 10.s.
HEILIG-MEYERS
EMPLOYEES' SUPPLEMENTAL PROFIT-SHARING
AND RETIREMENT SAVINGS PLAN
The Heilig-Meyers Employees' Supplemental Profit-Sharing and Retirement
Savings Plan, adopted effective as of March 1, 1991, is hereby amended and
restated effective as of March 1, 1994.
SECTION I
PURPOSE
This Plan is established and maintained solely for the purpose of
providing deferred compensation for a select group of highly-compensated
management employees in excess of the limitations imposed by Code sections
401(a)(17), 402(g) and 415 on benefits payable to those employees under the
Heilig-Meyers Employees' Profit-Sharing and Retirement Savings Plan (including
such other limitation imposed by the Company under Code sections 401(k) and
401(m)).
SECTION II
DEFINITIONS
Whenever used in this Plan, unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
2.1 Adjustment Date: The last day of each Plan Year. The
Committee may establish more frequent Adjustment Dates, if the Committee
deems it appropriate.
2.2 Beneficiary: Any person designated by a Participant or otherwise
entitled to receive benefits payable upon the death of the Participant.
Beneficiary designations shall be made on a Participant's Deferral Election and
may be changed by the Participant at any time before the date on which payment
of the Participant's Benefits is to commence. A Participant's Benefits may be
paid only to one designated Beneficiary. A Participant may designate primary and
secondary Beneficiaries.
2.3 Benefits: The aggregate amount of all Deferrals credited to
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a Participant's Deferrals Account under Sections 4.1 and 4.4, all Matching
Credits credited to and payable from a Participant's Matching Credits Account
under Sections 4.2 and 4.5, and all Earnings with respect to such Deferrals and
Matching Credits.
2.4 Board: The Board of Directors of Heilig-Meyers Company.
2.5 Code: The Internal Revenue Code of 1986, as amended, or any
subsequently enacted federal revenue law. Reference to a particular section of
the Code shall include a reference to any regulations issued under the section
and to the corresponding section of any subsequently enacted federal revenue
laws.
2.6 Committee: The committee established pursuant to Section VII
of the Employees' Plan.
2.7 Company:
(a) Heilig-Meyers Company
(b) MacSaver Financial Services, Inc.
(c) Heilig-Meyers Furniture Company
(d) Heilig-Meyers Company Associates, Inc.
(e) Any other Related Company that adopts the Employees'
Plan with the consent of Heilig-Meyers Company.
"Company" shall include any other company or organization that may be connected
with any of the foregoing corporations by merger, consolidation or otherwise and
which succeeds in writing to its rights, powers, liabilities and duties
hereunder.
2.8 Company Matching Contributions: The Company contribution
that is made pursuant to the provisions of the Employees' Plan.
2.9 Company Matching Contributions Account: For any Participant,
that account maintained for the Participant in accordance with the
provisions of the Employees' Plan.
2.10 Compensation: For any Participant, total earnings paid by
the Company during the Plan Year as determined pursuant to the provisions
of the Employees' Plan.
2.11 Deferral Election: An election filed with the Company
by a Participant to have Deferrals made under the Employees' Plan and
this Plan. A Participant's Deferral Election shall specify the
percentage of Compensation that the Participant elects to contribute as
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Deferrals to the Employees' Plan; the excess portion that may not be contributed
to the Employees' Plan as a result of the Tax Limits will automatically be
contributed to this Plan.
2.12 Deferrals: For any Participant, compensation deferrals
credited to such Participant's Account under Section 4.1.
2.13 Deferrals Account: The bookkeeping account established and
maintained for each Participant to record such Participant's Deferrals
and adjustments thereto pursuant to Section 4.4.
2.14 Earnings: The amount of earnings, if any, that accrue on the
investment of Participants' Deferrals and Matching Credits pursuant to
Section 4.6.
2.15 Eligible Employee: Any employee (a) who is a participant in the
Employees' Plan, (b) whose Salary Reduction Contributions under the Employees'
Plan are limited by the provisions of that plan which are designed to comply
with Code sections 401(a)(17), 402(g) and 415 or such other limitation imposed
by the Company under Code sections 401(k) and 401(m), (c) who is a management or
highly compensated employee within the meaning of section 201(2) of the Employee
Retirement Income Security Act of 1974, as amended, and (d) who is designated by
the Committee as eligible for participation in this Plan.
2.16 Employee: Any person employed by the Company as an employee,
other than as an independent contractor.
2.17 Employees' Plan: The Heilig-Meyers Employees' Profit-
Sharing and Retirement Savings Plan.
2.18 Matching Credits: For any Participant, amounts that are
credited by the Company to such Participant's Matching Credits Account
under Section 4.2.
2.19 Matching Credits Account: The bookkeeping account
established and maintained for each Participant to record such
Participant's Matching Credits and adjustments thereto pursuant to
Section 4.4.
2.20 Participant: Each Eligible Employee who is an active
participant in the Employees' Plan and who elects to participate in this
Plan.
2.21 Payment Election: An election filed with the Company by a
Participant that specifies the date on which the Participant wishes to
receive payment of all or a portion of his or her Benefits, and the form
in which such Benefits are to be paid. The timing and form of benefit
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selected by the Participant must be consistent with the provisions of Section V
of the Plan and in no event may benefits commence before age 50.
2.22 Plan: The "Heilig-Meyers Employees' Supplemental Profit-
Sharing and Retirement Savings Plan," as set forth herein and as amended
from time to time.
2.23 Plan Year: The calendar year. The period from March 1, 1994
(the effective date of the amended and restated Plan) to December 31,
1994 shall be a short plan year.
2.24 Related Company: Any corporation or business organization that is under
common control with the Company (as determined under Code section 414(b) or
(c)); a member of an affiliated service group with the Company (as determined
under Code section 414(m)); or an entity required to be aggregated pursuant to
Code section 414(o) and the regulations thereunder.
2.25 Retirement: A Participant's retirement from the Company in
accordance with the Company's standard retirement policy.
2.26 Retirement Date: The date on which the Participant elects to
retire from the Company in accordance with the Company's standard
retirement policy.
2.27 Salary Reduction Contributions: Contributions made at the
election of a Participant by the Employer pursuant to the provisions of
the Employees' Plan.
2.28 Salary Reduction Contributions Account: For any Participant,
that account maintained for the Participant in accordance with the
provisions of the Employees' Plan.
2.29 Tax Limits: The restrictions on Salary Reduction Contributions and
Company Matching Contributions under the Employees' Plan required by Code
sections 401(a)(17), 402(g) and 415 or as required by the Company under Code
sections 401(k) and 401(m).
2.30 Termination Date: The date on which a Participant terminates
employment with the Company other than on account of his/her Retirement.
2.31 Termination of Employment: A Participant's termination of
employment with the Company other than on account of his/her Retirement.
SECTION III
PARTICIPATION
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3.1 Election to Participate:
(a) An Eligible Employee may elect to become a Participant in
this Plan as of any January 1 by filing a Deferral Election with the Company by
no later than the November 30 immediately preceding the January 1 on which the
Eligible Employee's participation is to become effective.
(b) If an Employee first becomes an Eligible Employee after
January 1 of a Plan Year, the Eligible Employee may become a participant by
filing a Deferral Election with the Company within 15 days after the date on
which he or she is notified that he or she has become an Eligible Employee. The
Eligible Employee shall become a Participant effective as of the date on which
he or she files a Deferral Election with the Company.
3.2 Deferral Elections:
(a) A Participant's Deferral Election shall apply only to
Compensation earned after the effective date of the Deferral Election. Only one
Deferral Election may be made with respect to Compensation to be earned in a
single Plan Year.
(b) A Participant's Deferral Election shall continue in
effect until the close of the Plan Year to which it relates. However, if the
Participant ceases to be an Eligible Employee during a Plan Year, his or her
Deferral Election shall terminate as of the date on which he ceases to be an
Eligible Employee.
(c) Participants may make Deferral Elections for subsequent
Plan Years by filing a new Deferral Election with the Company by no later than
the November 30 immediately preceding the January 1 of the Plan Year to which
the Deferral Election will relate. All Deferral Elections shall automatically
terminate as of the close of the Plan Year to which they relate. A Participant
may elect to no longer actively participate in the Plan in subsequent Plan Years
by not making Deferral Elections for such subsequent Plan Years.
3.3 Termination of Participation; Re-employment: Participation shall
cease upon a Participant's termination of employment or if the Participant
ceases to be an Eligible Employee. Upon re-employment as an Eligible Employee, a
former Participant may again become a Participant in the Plan effective as of
the January 1 next following the date of his or her reemployment by filing a
Deferral Election with the Company in accordance with the provisions of Section
3.1(a). If a Participant elects not to become an active Participant for a Plan
Year, he or she may become an active Participant effective as of the next
following January 1, or any subsequent January 1, by filing a Deferral Election
with the Company in accordance with the provisions of Section 3.1(a).
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3.4 Change in Status: If a Participant ceases to be an Eligible
Employee or elects not to be an active Participant, but continues to be employed
by the Company, Deferrals and Matching Credits shall be suspended as provided in
Section 4.3. All other provisions of this Plan shall remain in effect, and he or
she shall continue to be entitled to receive credits pursuant to Section 4.3,
and to receive Earnings, until his or her Benefits are fully distributed as
provided in Section V.
SECTION IV
DEFERRALS, MATCHING CREDITS AND ACCOUNTS
4.1 Participant Deferrals: A Participant will be entitled to make
Deferrals under this Plan in accordance with the Participant's election to make
Salary Reduction Contributions pursuant to the terms of the Employees' Plan. Any
amounts that cannot be credited to the Participant's Salary Reduction
Contributions Account under the Employees' Plan because of the Tax Limits shall
be credited to his or her Deferrals Account maintained pursuant to Section 4.4.
In no event may a Participant make Deferrals during a Plan Year unless he has
made the maximum amount of Salary Reduction Contributions to the Employees' Plan
permitted under Section 402(g) of the Code and under the terms of the Employee's
Plan. The aggregate amount of a Participant's Deferrals under this Section 4.1
in any given Plan Year shall not exceed the excess of (a) the amount that the
Participant would have been able to contribute to such Participant's Salary
Reduction Contributions Account for such Year if there were no Tax Limits over
(b) the amount of any Salary Reduction Contributions actually credited to such
Participant's Salary Reduction Contributions Account for such Plan Year.
4.2 Matching Credits: Each Plan Year, the Company shall credit to the
Matching Credits Account of each Participant an amount equal to the excess of
(a) the amount of the Company Matching Contributions that the Company would have
made on behalf of such Participant for such Plan Year (pursuant to the
provisions of the Employees' Plan) if there were no Tax Limits and such
Participant had made Salary Reduction Contributions to the Employees' Plan equal
to the sum of the Salary Reduction Contributions actually made plus the
Deferrals made pursuant to this Plan for such Plan Year over (b) the amount of
any Company Matching Contributions actually made by the Company on behalf of
such Participant during such Plan Year. Amounts credited to a Participant's
Matching Credits Account shall be payable to the Participant only if the
Participant would have had a vested interest in such amounts had they been
credited to the Participant's Company Matching Contributions Account under the
Employees' Plan.
4.3 Change of Status: Participant Deferrals pursuant to Section 4.1 and
Matching Credits pursuant to Section 4.2 for a Participant who changes his or
her status will be governed by the following provisions:
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(a) A Participant who elects not to participate in the Plan
will be credited with Deferrals and Matching Credits through and ending with the
payroll period within which the Participant's election is received by the
Company or until such other date as is administratively practicable.
(b) A Participant who ceases to be an Eligible Employee will
be credited with Deferrals and Matching Credits through and ending with the
payroll period within which he or she ceases to be an Eligible Employee or until
such other date as is administratively practicable.
4.4 Deferrals Accounts: For bookkeeping purposes only, the Company
shall maintain a Deferrals Account for each Participant to which each
Participant's Deferrals shall be credited. Deferrals shall be credited to a
Participant's Deferrals Account as of the end of the month in which the
Compensation constituting such Deferral is earned. Any Earnings shall be
credited to the Participant's Deferrals Account as of each Adjustment Date.
4.5 Matching Credits Accounts: For bookkeeping purposes only, the
Company shall maintain a Matching Credits Account for each Participant to which
Matching Credits made on behalf of such Participant shall be credited. Matching
Credits shall be credited to a Participant's Matching Credits Account at least
annually. Any Earnings shall be credited to the Participant's Matching Credits
Account as of each Adjustment Date.
SECTION V
PAYMENT OF BENEFITS
5.1 Payment Elections:
(a) A Participant's Benefits shall be paid in accordance with
the terms of the Payment Election relating to such Benefits and in accordance
with the provisions of this Section V. A Participant may elect to have the
Benefits attributable to any single Deferral Election paid at a time and in a
form different from the time and form of payment elected with respect to the
Benefits attributable to any other Deferral Election, provided that such
election complies with the terms of this Section V. Each Participant, and each
former Participant with Benefits under the Plan, must have at least one or more
Payment Elections on file with the Company at all times.
(b) A Payment Election shall become effective as of the first
day of the month immediately following the date on which the Payment Election is
filed with the Company.
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(c) Subject to the limitations described in subsection (d)
below, a Participant may change a Payment Election by filing a new Payment
Election with the Company. Such new Payment Election shall be effective as of
the first day of the month immediately following the date on which the new
Payment Election is filed with the Company. The new Payment Election may specify
that a Participant's Benefits be paid as of a date different from the date
specified in the Participant's current Payment Election provided that the new
payment date is at least 12 or more months after the effective date of the new
Payment Election, and (ii) the payment date specified in the current Payment
Election will not occur for at least 12 or more months after the effective date
of the new Payment election.
(d) A Participant may change a Payment election relating to a
Deferral Election three (3) times; provided, however, that a Payment Election
may not be changed in successive [Plan Years] and may be changed only once every
three (3) [Plan Years].
5.2 Timing of Payment:
(a) Generally, a Participant's Benefits shall begin to be
distributed as of the January 1 following the date specified in the
Participant's Payment Election. The specified date may be either the (i)
Participant's Retirement Date or (ii) the date on which the Participant will
attain age 50 or some later specified age.
(b) In the event a Participant fails to designate a date in
the Payment Election, a Participant's Benefits automatically shall be
distributed as of the earliest of the January 1 following (i) the Participant's
death, (ii) the Participant's Retirement Date, or (iii) the Participant's
Termination Date.
5.3 Form of Payment: If a Participant's Benefits are to be paid on
account of the Participant's Termination of Employment, the entire amount of the
Participant's Benefits will be paid in the form of a single lump sum payment as
of the January 1 following the date of the Participant's Termination Date. In
all other cases, Benefits shall be paid in the form designated by the
Participant on the Payment Election relating to such benefits. The available
distribution forms are as follows:
(i) A single lump sum payment.
(ii) Annual installments over a term of five
(5), ten (10), or fifteen (15) years, as selected by the Participant. If the
Participant dies before the completion of installment payments, any remaining
Benefits shall be paid to his or her Beneficiary. If a Beneficiary who is
receiving payments dies, any remaining balance of the account shall be paid to
the personal representative of the Beneficiary's estate.
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If a Participant has not designated the form in which his or her Benefits are to
be paid prior to the date on which the Benefits become payable, such Benefits
will be distributed to the Participant in a single lump sum payment as of the
date on which they are first payable.
5.4 Method of Payment: All payments to any Participant or
Beneficiary under this Plan shall be made in cash.
5.5 Death Benefits:
(a) If a Participant's Benefits become payable on account of
the Participant's death, his or her Beneficiary shall receive Benefits equal to
the greater of (1) seventy-five percent (75%) of the total Benefits that would
have been paid to the Participant had the Participant survived to his or her
Retirement Date or (2) the Participant's total Benefits as of the date of death.
The Beneficiary shall be entitled to elect to receive such Benefits under one of
the forms described in Section 5.3.
(b) Notwithstanding the foregoing, if a Participant dies
prior to the second December 31 following the effective date of any given
Deferral Election, his or her Beneficiary shall receive Benefits equal to the
total Benefits relating to that Deferral Election as of the date of the
Participant's death.
5.6 Disability: If Participant becomes permanently disabled, the
Participant may elect to receive all or a portion of his or her Benefits before
the payment date specified in his or her Payment Election. A Participant will be
considered permanently disabled for purposes of this Section 5.6 only if (i) the
Participant has been determined to be permanently disabled under the provisions
of the Employees' Plan and (ii) the Committee determines that payment of all or
a portion of the Participant's Benefits is necessary to alleviate financial
hardships caused by the permanent disability of the Participant. The amount of
Benefits available for payment to a permanently disabled Participant under this
Section 5.6 are the total Benefits to which the Participant is entitled as of
the date of the Committee's determination that he or she is permanently
disabled.
SECTION VI
UNFUNDED PLAN
There is no fund associated with this Plan. The Company shall be
required to make payments only as Benefits become due and payable. No
Participant or Beneficiary shall have any right, other than the right of an
unsecured general creditor, against the Company in respect to the Benefits
payable, or which may be payable, to such Participant or Beneficiary hereunder.
If the Company, acting in its sole discretion,
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establishes a reserve or other fund associated with this Plan, then, except as
may otherwise be provided in the instrument pursuant to which such reserve or
fund is established, no Participant or Beneficiary shall have any right to or
interest in any specific amount or asset of such reserve or fund by reason of
amounts which may be payable to such person under this Plan, nor shall such
person have any right to receive any payment under this Plan except as and to
the extent expressly provided in this Plan.
SECTION VII
MISCELLANEOUS PROVISIONS
7.1 Non-Guarantee of Employment: Nothing contained in this Plan shall
be construed as a contract of employment between the Company and any
Participant, or as a right of any such Participant to be continued in the
employment of the Company or as a limitation of the right of the Company to deal
with any Participant, as to their hiring, discharge, layoff, compensation, and
all other conditions of employment in all respects as though this Plan did not
exist.
7.2 Rights Under Employees' Plan: Nothing in this Plan shall be
construed to limit, broaden, restrict, or grant any right to a Participant or
Beneficiary under the Employees' Plan, nor in any way to limit, modify, repeal
or otherwise affect the Company's right to amend or modify the Employees' Plan.
7.3 Amendments/Termination: The Company reserves the right to amend or
terminate this Plan by vote duly adopted by the Board (or any duly authorized
committee thereof); provided, however, that no such amendment or termination
shall adversely affect the total Benefits to which a Participant is entitled as
of the date of amendment or termination of the Plan.
7.4 Non-Assignability: The Benefits payable under this Plan shall not
be subject to alienation, assignment, pledge, garnishment, execution or levy of
any kind and any attempt to cause any such Benefits to be so subjected shall not
be recognized.
7.5 Plan Administration: This Plan shall be operated and
administered by the Committee whose decision on all matters involving the
interpretation and administration of this Plan shall be final and
binding.
7.6 Withholding of Taxes, etc.: All amounts payable hereunder shall be
reduced for the amounts required to be withheld pursuant to any applicable
governmental law or regulation with respect to taxes or any similar provisions.
7.7 Successor Company: In the event of the dissolution, merger,
consolidation or reorganization of the Company, provision may be made by which a
successor to all or a major portion of the Company's property or business shall
continue this Plan, and the successor shall have all of the powers, duties and
responsibilities of the Company under this Plan.
7.8 Governing Law: This Plan shall be construed and enforced in
accordance with, and governed by, the laws of the Commonwealth of
Virginia.
* * * * *
IN WITNESS WHEREOF, Heilig-Meyers Company has caused this Plan to be
executed the 5th day of December, 1995.
HEILIG-MEYERS COMPANY
By:/s/ William J. Dieter
Title: Sr. Vice President-Accounting