[DESCRIPTION] MANAGER OWNED TARGET BENEFIT PLAN
GREENBRIER LEASING CORPORATION
MANAGER OWNED TARGET BENEFIT PLAN
JANUARY 1, 1996
GREENBRIER LEASING CORPORATION
MANAGER OWNED TARGET BENEFIT PLAN
JANUARY 1, 1996
THE COMPANY:
GREENBRIER LEASING CORPORATION
a Delaware corporation
Suite 200
One Centerpointe Drive
Lake Oswego, Oregon 97035
The Company adopts this Plan effective
January 1, 1996 to
provide retirement benefits for certain of its managers and,
potentially, those
of Company affiliates that adopt the Plan with the approval
of the Company. The
benefits provided by the Plan are in addition to those
provided by Social
Security and by any tax-qualified retirement plan maintained
by the Company
and/or its affiliates.
1. PURPOSE; EMPLOYERS; PLAN YEAR
1.1 PURPOSE - The purpose of this Plan is to
provide eligible managers
of the Company and its affiliates with additional retirement
benefits in order
to help retain and attract top-quality managers.
1.2 EMPLOYERS - This Plan shall apply to the
Company and to
corporations or other entities that are affiliates of the
Company and that adopt
the Plan for their employees with the approval of the Board
of Directors of the
Company.
(a) For this purpose, an affiliate means an
employer that is a
member, with the Company, of a controlled group, a
group of trades or
businesses under common control or an affiliated
service group under
sections 414(b), (c) or (m) of the Internal
Revenue Code of 1986, as
amended (the Code).
(b) An affiliate may adopt the Plan by a
statement in writing
signed by the affiliate and by an authorized
officer of the Company
upon approval of the Board of Directors of the
Company. The statement
shall include the effective date of adoption and
any special
provisions applicable to employees of the adopting
affiliate.
(c) Once the Company has approved an
affiliate's adoption of the
Plan as provided in (b) above, such approval may
not be revoked as
long as the affiliate continues to meet the
definition of affiliate in
(a) above.
(d) The term "Employer" refers collectively
to the Company and
adopting affiliates.
1.3 PLAN YEAR - The Plan Year shall be the
calendar year.
2. ELIGIBILITY; PARTICIPATION; VOTING
2.1 ELIGIBILITY - The employees listed in Appendix
A below are the
initial group of eligible employees. Additional employees
subsequently
designated in writing by the Board of Directors of the
Company upon consultation
with the Compensation Committee of the Board of Directors of
The Greenbrier
Companies, Inc. (the Parent) shall become eligible.
2.2 PARTICIPATION - The employees listed in
Appendix A shall begin
participation effective January 1, 1996 and their first-year
participation shall
be funded by March 31, 1997, as provided in 3.1 below. Any
additional eligible
employees shall begin participating on the date specified in
their designation
of eligibility. If no date is specified in the designation
of eligibility, if
the designation is made on January 1, participation shall
begin that day; if the
designation is made any other day, participation shall begin
on the January 1
next after the date of the designation. Each eligible
employee who has begun
participating shall be known as a participant.
2.3 TERMINATION OF PARTICIPATION - Once an
employee has become a
participant, the designation of eligibility to participate
under 2.1 above may
not be revoked, and participation shall continue until the
participant's
termination of employment with the Company and any affiliate
for any reason,
subject to 3.3 and 5.6 below.
2.4 VESTING - Participants' benefits under the
Plan shall be fully
vested and nonforfeitable at all times.
3. CONTRIBUTIONS AND ALLOCATIONS
3.1 TIME OF EMPLOYER CONTRIBUTIONS - Subject to
5.6 below and the
following sentence, by the January 31 following each Plan
Year, starting January
31, 1998, Employer shall contribute to one or more insurers
selected by the
Administrator (the Insurers) for the Plan Year an amount
determined under 3.2
below. For the 1996 Plan Year, the contribution shall be
made by March 31, 1997.
3.2 CONTRIBUTIONS - The contribution and the
payment determined under
3.4 below shall be made based upon the consolidated earnings
of the Parent for
the fiscal year ending during the Plan Year and shall
initially be 1.8% of
earnings, and shall be subject to adjustment by the Board of
Directors of the
Company upon consultation with the Compensation Committee of
the Board of
Directors (the Committee) of the Parent. For this purpose,
"earnings" shall mean
net earnings before taxes on income and bonus accruals or
payments, as
determined by generally accepted accounting principles. Once
determined, the
amount of earnings for a year shall not be changed because
of any later
adjustment of accounts.
3.3 ALLOCATION OF CONTRIBUTIONS - Each annual
contribution under 3.2
above shall be allocated among eligible participants as
follows:
(a) Eligible participants are all
participants except those who
reached age 65 (Normal Retirement Date) before the
start of the Plan
Year or whose employment with the Company and
affiliates terminated
during the Plan Year before the participant's
Normal Retirement Date.
(b) Each participant's share of the
contribution shall be the
result determined by multiplying the contribution
by a fraction, the
numerator of which is the participant's points for
the year and the
denominator of which is all eligible participants'
points for the
year.
(c) For the first year of Plan participation,
the participant's
points shall be the product of the participant's
compensation, for
this purpose considering only of base compensation
and bonus, for the
fiscal year ended within the Plan Year multiplied
by the benefit
factor in Appendix B below for the participant's
age at the start of
the Plan Year.
(d) For each later Plan Year, each eligible
participant shall
earn additional or lose existing points as
follows:
(1) The Participant's compensation under
(c) above for the
prior fiscal year ended within the prior Plan
Year shall be
subtracted from the participant's
compensation for the current
fiscal year ended within the current Plan
Year.
(2) The result of the subtraction in (1)
above, even if it
is a negative number, shall be multiplied by
the benefit factor
in Appendix C below for the participant's age
at the start of the
current Plan Year.
(e) Each participant's points for a Plan Year
shall equal the sum
of the participant's points for the current Plan
Year and all prior
Plan Years.
3.4 TAX PAYMENT - In addition, Employer shall make
a cash payment to
each participant or make remittance to the appropriate
taxing authorities to
cover the participant's estimated tax liability resulting
from the contribution
and the tax payment, determined assuming a 50% combined
federal, state and local
tax bracket, made during the year. The payment or remittance
shall be made at
the time the contribution for the participant is made and
may be retained , in
whole or in part, by the Company in satisfaction of its
obligations to make
withholdings in respect of payments to participant
hereunder.
4. ANNUITY PURCHASE
4.1 PAYMENT TO INSURERS - Employer contributions
under section 3 shall
be promptly transmitted to the Insurers for purchase of
individual annuity
contracts (the Contracts), which will be owned by each
participant. The Insurers
shall hold and invest the contributions under the terms of
the Contracts.
4.2 INSURER DUTIES - The Insurers' duties shall be
as set forth in the
Contracts. To the extent not inconsistent with the
Contracts, the Insurers shall
have the following duties:
(a) To notify the Administrator at least
annually, at the end of
the Plan Year, and when reasonably requested by
the Administrator, of
the amount held under each Contract.
(b) To make distributions pursuant to this
Plan and to report and
disclose, as required by law, the taxable amount
of each distribution.
5. PAYMENT OF BENEFITS
5.1 NORMAL RETIREMENT BENEFIT - If a participant
has not previously
terminated employment with the Company and affiliates,
payment of the amount
held under the participant's Contract, including any
contribution for the Plan
Year of Normal Retirement, shall be made in substantially
equal monthly
installments beginning on the participant's Normal
Retirement Date and
continuing for 180 months. Payment shall be made whether or
not the participant
remains employed with an Employer after Normal Retirement
Date.
5.2 TERMINATION BENEFIT - Subject to 5.6 below, if
a participant's
employment with the Company and affiliates terminates for
any reason, including
death or disability, other than Normal Retirement, payment
of the amount held
under the participant's Contract shall be made in
substantially equal monthly
installments beginning on the participant's Normal
Retirement Date and
continuing for 180 months unless the Contract permits
earlier payment to or on
behalf of the participant.
5.3 EFFECT OF DEATH - If a participant dies either
before or after the
benefit starting date but before payment is completed, the
amount held under the
participant's Contract shall be paid to the participant's
beneficiary either in
a single sum within 30 days after the Administrator receives
satisfactory
evidence of the participant's death or in 180 substantially
equal monthly
installments beginning on the date that would have been the
participant's Normal
Retirement Date, as provided in the Contract.
5.4 DESIGNATION OF BENEFICIARY - Each participant
shall designate
beneficiaries in writing to the Administrator. If no
beneficiary has been named,
or no named beneficiary is living at the participant's
death, payment shall be
made in the following order of preference:
(a) To the participant's surviving spouse.
(b) To the participant's surviving children,
in equal shares.
(b) To the participant's estate.
5.5 FACILITY OF PAYMENT - The Administrator may
decide that because of
the mental or physical condition of a person entitled to
payments, or because of
other relevant factors, it is in the person's best interest
to make payments to
others for the benefit of the person entitled to payment. In
that event, the
Administrator may in its discretion direct that payment be
made in one or more
of the following ways:
(a) To the participant or beneficiary.
(b) To a spouse or parent or to a child of
legal age.
(c) To one having actual custody of the
person.
(d) To a legal guardian.
(e) To one furnishing maintenance, support or
hospitalization.
5.6 CHANGE OF CONTROL - In the event of a change
of control, Employer
shall, within 30 days after the change of control and
without regard to 3.2
above, contribute to the Insurers the amount determined
under 5.7 below.
Distribution to participants shall be made pursuant to 5.2
above. For purposes
of this Plan, a "change in control" shall consist of any of
the following:
(a) Any person or group, as defined in
sections 13(d) and
14(d)(2) of the Securities Exchange Act as amended
(the Act), becoming
the beneficial owner, as defined in Rule 13-d
under the Act, of more
than 20% of the then-outstanding stock of the
Company or the Parent if
such person or group was not such an owner as of
January 1, 1996.
(b) Individuals who, at the beginning of any
24-month period,
constitute the Board of Directors of the Parent
ceasing for any reason
to constitute a majority of such Board.
(c) During any 24-month period, the sale,
transfer or similar
transaction involving a majority of the assets of
the Company or the
Parent.
5.7 CONTRIBUTION DUE UPON CHANGE OF CONTROL - Upon
a change of control
under 5.6 above, Employer shall contribute the following
amount:
(a) The contribution for each affected
participant under (b)
below shall be the participant's average
allocation under 3.3 above
for the prior three Plan Years of participation
(or all Plan Years of
participation, if less than three) multiplied by
the number of Plan
Years from the effective date of change of control
to the
participant's Normal Retirement Date, counting
both the year of change
of control and the year of Normal Retirement Date
as whole years,
discounted to present value. The interest rate
used in determining
present value shall be the interest rate
applicable to the Company's
principal bank borrowings as of the effective date
of the change of
control or, if there is no such rate readily
determinable, ten percent
per year.
(b) The following participants shall benefit
from a change of
control under 5.6 above:
(1) Each participant who is employed by
the Company or an
affiliate at the date of the change of
control.
(2) Each former participant whose
employment was terminated
by the Company or an affiliate without cause
under 5.8 below less
than 24 months before the date of the change
of control.
(3) Each participant and former
participant for whom
contributions ceased or were reduced due to
amendment or
termination of the Plan under 8.1 below less
than 24 months
before the date of the change of control.
5.8 CAUSE FOR TERMINATION - For purposes of
5.7(b)(2) above, "cause"
means either of the following:
(a) Misconduct by the participant that both
is clearly
inconsistent with the participant's position or
responsibilities and
has had or can reasonably be expected to have a
material adverse
effect on the participant's effectiveness or an
Employer's interests.
(b) Persistent failure or refusal by the
participant to perform
with reasonable competence and in good faith
duties assigned by the
Employer that are commensurate with the
participant's position or
another position designated by Employer for which
the participant is
comparably qualified.
6. ADMINISTRATION
6.1 COMPANY AND EMPLOYER FUNCTIONS - Except as
provided in (a) below,
all Company or Employer functions or responsibilities shall
be exercised by the
chief executive officer of the entity, who may delegate all
or any part of these
functions.
(a) The power to amend or terminate the Plan
under 8.1 below may
be exercised only by the Board of Directors of the
Company upon
consultation with the Committee except as provided
in (b) below.
(b) The Administrator may amend the Plan to
make technical,
administrative or editorial changes on advice of
counsel to comply
with applicable law or to simplify or clarify the
Plan.
6.2 ADMINISTRATOR FUNCTIONS - The Plan shall be
administered by the
chief financial officer of the Company and the chair of the
Committee, who shall
jointly serve as Administrator. The Administrator shall
interpret the Plan,
decide any questions about the rights of participants and
beneficiaries and in
general administer the Plan. The Administrator may delegate
all or part of its
administrative duties to one or more agents and may retain
advisors to assist
it. The Administrator may consult with and rely upon the
advice of counsel, who
may be counsel for an Employer. Any decision by the
Administrator within its
authority shall be final and bind all parties. The
Administrator shall have
absolute discretion to carry out its responsibilities under
the Plan. The
Administrator shall be the agent for service of process on
the Plan. Any person
having an interest under the Plan may consult the
Administrator at any
reasonable time.
6.3 ACTION BY ADMINISTRATOR - Unless one of the
positions serving as
Administrator is vacant, the Administrator shall act only to
the extent both
incumbents agree. If one position is vacant, the other
incumbent shall have
authority to act. If both positions are vacant, the senior
member of the
Committee shall serve as Administrator under either position
is filled.
Documents may be signed for the Administrator by either
incumbent as long as the
requirements of this paragraph are satisfied.
7. CLAIMS PROCEDURE
7.1 ORIGINAL CLAIM - Any person claiming a benefit
or requesting an
interpretation, a ruling or information under the Plan shall
present the request
in writing to the Administrator, which shall respond in
writing as soon as
practicable.
7.2 DENIAL - If the claim or request is denied,
the written notice of
denial shall state:
(a) The reasons for denial, with specific
reference to the
provisions on which the denial is based.
(b) A description of any additional material
or information
required and an explanation of why it is
necessary.
(c) An explanation of this claim review
procedure.
7.3 REQUEST FOR REVIEW - Any person whose claim or
request is denied
or who has not received a response within 30 days may
request review by notice
in writing to the Administrator. The original decision shall
be reviewed by the
Administrator, which may, but shall not be required to,
grant the claimant a
hearing. On review, whether or not there is a hearing, the
claimant may have
representation, examine pertinent documents and submit
issues and comments in
writing.
7.4 DECISION ON REVIEW - The decision on review
shall normally be made
within 60 days. If an extension of time is required for a
hearing or other
special circumstances, the claimant shall be so notified and
the time limit
shall be 120 days. The decision shall be in writing and
shall state the reasons
and the relevant provisions. All decisions on review shall
be final and bind all
parties concerned.
8. AMENDMENT AND TERMINATION
8.1 AMENDMENT; TERMINATION - Subject to 5.6 above,
regarding change of
control, and the following sentence, the Company may amend
or terminate this
Plan under 6.1 above at any time by written instrument
signed by the Company and
delivered to the Administrator. No termination nor any
amendment affecting the
change-of-control rules or allocation formula shall be
effective before the last
day of the Plan Year in which the amendment or termination
document is signed by
the Company and delivered to the Administrator and to each
participant.
8.2 EFFECT OF TERMINATION - Upon termination or
discontinuance of
contributions, payment shall be made under 5.2 above.
9. GENERAL PROVISIONS
9.1 INFORMATION REQUIRED - The Administrator may
require satisfactory
proof of age or other data from a participant or
beneficiary, and may adjust any
benefit if an error in relevant data is discovered.
9.2 NO IMPLIED WAIVER - A waiver by an Employer,
participant or
beneficiary of a breach of a provision of the Plan shall not
constitute a waiver
or prejudice the party's right otherwise to demand strict
compliance with that
provision or any other provision.
9.3 ARBITRATION - Any dispute or controversy
arising out of this Plan,
or any contribution, claim or benefit hereunder, or any
interpretation hereof,
shall be resolved by binding arbitration conducted in
Portland, Oregon by a
single, neutral arbitrator, under the Commercial Arbitration
Rules of the
American Arbitration Association.
9.4 NOTICES - Any notice under this Plan shall be
in writing and shall
be effective when actually delivered or, if mailed, when
deposited postpaid as
first-class mail. Mail shall be directed to the Company at
the address stated in
this Plan, to a participant or beneficiary at the address
shown in the Company's
employment records or to such other address as a party may
specify by notice to
the other parties or as the Administrator may determine to
be appropriate.
Notices to the Administrator shall be sent to the Company's
address.
9.5 NONASSIGNMENT - The rights of participants
under this Plan are
personal. No interest of a participant or one claiming
through a participant may
be directly or indirectly transferred, encumbered, seized by
legal process or in
any other way subjected to the claims of any creditor.
9.6 INDEMNITY - The Company shall indemnify and
defend any director,
officer or employee of an Employer from any claim or
liability that arises from
any action or inaction in connection with the Plan, subject
to the following
rules:
(a) Coverage is limited to actions taken in
good faith that the
person reasonably believed were not opposed to the
Plan's best
interests.
(b) Negligence by the person shall be covered
to the fullest
extent permitted by law.
(c) Coverage shall be reduced to the extent
of any insurance.
9.7 PAYMENTS NOT WAGES - The payments under
section 5 above shall not
constitute salary or wages. Such payments are retirement
benefits, not
compensation for performance of any substantial services.
9.8 APPLICABLE LAW - This Plan shall be construed
according to the
laws of Oregon, except as preempted by federal law.
9.9 NOT CONTRACT OF EMPLOYMENT - Nothing in this
Plan shall give any
employee the right to continue employment. This Plan shall
not prevent discharge
of any employee at any time for any reason.
9.10 PLAN BINDING ON SUCCESSORS - Subject to 5.6
above, this Plan
shall be binding upon and inure to the benefit of the
parties and their
successors and assigns.
COMPANY GREENBRIER LEASING CORPORATION
By: /s/ William A. Furman
-----------------------------
Its: President
-----------------------------
Executed March 31, 1997.