EXHIBIT 10.28
Supplemental Executive Retirement Plan for Key Salaried
Employees of Mykrolis Corporation
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR KEY SALARIED EMPLOYEES OF
MYKROLIS CORPORATION
INTRODUCTION
Mykrolis Corporation hereby establishes the Supplemental Executive Retirement
Plan for Key Salaried Employees of Mykrolis Corporation effective as of the
Effective Date for the following purposes:
(1) To provide benefits to certain key salaried employees based on compensation
which is not included in the definition of compensation under the terms of
the Mykrolis Corporation Savings and Investment Plan due to the deferral of
such compensation under the terms of this Supplemental Plan or under any
other nonqualified deferred compensation plan of Mykrolis Corporation. Such
benefits shall be equal to the benefits which would have been provided
under the terms of the Savings Plan if such deferred compensation were
included in the definition of compensation under those plans and if the
limitations of Sections 401(a)(17), 402(g), and 415 of the Code, and the
non-discrimination requirements of Code Sections 401(k) and 401(m) did not
apply.
SECTION 1 DEFINITIONS
The following terms when used in this supplemental plan with initial capital
letters shall have the meanings assigned to them below. Except where the context
otherwise requires, words imparting the singular number shall include the plural
number and vice versa, words denoting any gender shall include all genders and
words denoting persons shall include bodies corporate and vice versa:
1.1. "Administrative Committee" means the committee established pursuant to
Section 5.4 below to administer the Supplemental Plan.
1.2. "Board" means the Board of Directors of Mykrolis Corporation, as from
time to time in office.
1.3. "Code" means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provisions of any legislation
which amends, supplements or replaces such section or subsection.
1.4. "Company" means Mykrolis Corporation, a Delaware corporation, together
with any subsidiary or affiliated corporation that the Board determines
to add to this Supplemental Plan.
1.5. "Effective Date" means April 1, 2001, subject to the approval of the
Board of Directors of Mykrolis Corporation, which approval may be given
before or after the Effective Date.
1.6. "Participant" a key salaried employee of the Company designated by the
Board to receive benefits under this Supplemental Plan.
1.7. "Savings Plan" means the Mykrolis Corporation Savings and Investment Plan,
as it may be amended or restated, from time to time.
1.8. "Supplemental Account" means, for each Participant, the account under this
Supplemental Plan to which contributions hereunder shall be credited in
accordance with the provisions hereof. In the discretion of the
Administrative Committee Supplemental Accounts may be subdivided for
supplemental employer contributions under Section 2.1, supplemental
Participant contributions under Section 2.2 and supplemental employer
matching contributions under Section 2.3.
1.9. "Supplemental Plan" means this Supplemental Executive Retirement Plan for
Key Salaried Employees of Mykrolis Corporation as set forth herein and all
amendments hereto.
SECTION 2. SUPPLEMENTAL SAVINGS PLAN BENEFITS
2.1. Supplemental Employer Contributions. If contributions to the Savings Plan
on behalf of a Participant are limited by the application of the limits
described in Code Sections 401(a)(17) and 415 and/or a Participant makes
compensation deferrals pursuant to this Supplemental Plan or to any other
nonqualified deferred compensation plan of the Company, the Company shall
credit to the Participant's Supplemental Plan Account an amount equal to
the excess of (a) over (b), where (a) is the amount which would have been
contributed to the Savings Plan in the absence of the limits described in
Code Sections 401(a)(17) and 415 and any compensation deferrals under this
Supplemental Plan or any other nonqualified deferred compensation plan of
the Company, and (b) is the amount actually contributed under the Savings
Plan.
2.2. Supplemental Participant Contributions. If a Participant's contributions
are limited by the limits of Section 415 of the Code or by the annual
contribution limit under Section 402(g) of the Code, the Participant may
elect to defer a portion of his gross compensation (prior to any deferrals
under the Savings Plan, this Supplemental Plan, or any other nonqualified
deferred compensation plan of the Company) equal to the excess of (a) over
(b), where (a) is the amount the Participant would have contributed under
the Savings Plan in the absence of the limitations of Code Section
401(a)(17), Section 402(g), and Section 415, and/or the non-discrimination
requirements of Code Section 401(k) and by taking into account the
Participant's gross compensation (prior to any compensation deferrals
described above) and (b) is the amount actually contributed by the
Participant under the Savings Plan.
2.3. Supplemental Employer Matching Contributions. If a Participant makes
supplemental Participant contributions pursuant to Section 2.2 of this
Supplemental Plan, the Company shall credit to his Supplemental Account an
amount equal to the employer matching contributions which would have been
made pursuant to the Savings Plan if the Participant's supplemental
Participant contributions had been
made pursuant to the Savings Plan, without regard to the nondiscrimination
requirements of Code Section 401(m).
All payments of benefits to Participants and/or their designated beneficiaries
under this Section 2 of the Supplemental Plan shall be made in any of the three
forms set forth below; the particular form to be selected by the Administrative
Committee in its sole discretion after giving due consideration to the desires
of the Participant and/or his or her designated beneficiary, communicated to the
Administrative Committee at least six (6) months prior to the date on which any
such benefit payment is to commence:
A lump sum payment;
The payment of a life annuity;
In five, ten or fifteen equal annual installments. (Equal shall mean dividing
the account balance by the number of years remaining before making the annual
installment then due).
Any unpaid balance shall remain in the Participant's Supplemental Account and
shall be adjusted in the manner as provided for in Section 2.
SECTION 3
INVESTMENT DIRECTION
Participants shall be entitled to designate what percentage of all contributions
credited to the Participant's Supplemental Account in accordance with Section 2
above will be invested in the various Investment Options (as defined under
Section 1.27 of the Savings Plan) in accordance with the provisions of the
Savings Plan. Participant designations under the Savings Plan shall be effective
for and shall govern the investment of contributions under this Supplemental
Plan; no separate investment designations under this Supplemental Plan shall be
permitted.
SECTION 4
DISTRIBUTIONS AND LOANS
4.1. General. Distributions on account of retirement, death, disability or other
termination of employment under the Supplemental Plan shall be made in
accordance with Section 2.
4.2. Distributions While Employed. No distributions may be made to a Participant
under the terms of this Supplemental Plan while the Participant is an
employee of the Company or of any affiliate or subsidiary of the Company.
4.3. Right of Offset. If, at the time of payment hereunder, the Administrative
Committee determines that the Participant to whom or on whose behalf
payment is being made, for any reason, is indebted to the Company or to any
affiliate or subsidiary of the Company, the Administrative Committee shall
be entitled to
offset such indebtedness, including any interest accruing thereon, against
any payments otherwise due under the Supplemental Plan.
4.4. Withholding. The Company shall be entitled to withhold from payments due
under the Supplemental Plan any and all taxes of any nature required by any
government to be withheld from compensation paid to Participants.
4.5. Loans. No loans to Participants shall be permitted under the Supplemental
Plan.
SECTION 5
VESTING
A Participant shall be vested at all times in his or her Supplemental Plan
benefits to the same extent that the Participant is vested in his or her
Employer Contributions Accounts under the Savings Plan.
SECTION 6
MISCELLANEOUS
5.1. Amendment and Termination.
(1) The Board may at any time and from time to time, amend or terminate
this Supplemental Plan, without the consent of any Participant or
beneficiary, provided that no such amendment or termination shall
reduce any benefits accrued under the terms of this Supplemental Plan
prior to the date of termination or amendment.
(2) Any amendment or termination of the Supplemental Plan shall become
effective as to a Participant or beneficiary on the first day of the
month following the effective date of the amendment or termination.
5.2. No Contract of Employment. The establishment of the Supplemental Plan or
any modification thereof shall not give any Participant or other person the
right to remain in the service of the Company or of any subsidiary or
affiliate of the Company, and all Participants and other persons shall
remain subject to discharge to the same extent as if the Supplemental Plan
had never been adopted.
5.3. Tax Effects. None of the Company, the Board, the Administrative Committee,
and any firm, person, or corporation, represents or guarantees that any
particular federal, state or local tax consequences will occur as a result
of any Participant's participation in this Supplemental Plan. Each
Participant shall consult with his or her own advisors regarding the tax
consequences of participation in this Supplemental Plan.
5.4. Administrative Committee. The Supplemental Plan shall be administered by
the Administrative Committee which shall consist of at least three members
who shall serve at the pleasure of the Board. The initial members of the
Administrative Committee are listed on Schedule A attached hereto.
5.5. Entire Agreement; Successors. This Supplemental Plan, including any
subsequently adopted amendments, shall constitute the entire agreement or
contract between the Company and any Participant regarding the Supplemental
Plan. There are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the Company and any
Participant relating to the subject matter hereof, other than those set
forth in this Supplemental Plan. This Supplemental Plan and any amendment
shall be binding on the parties hereto and their respective heirs
administrators, trustees, successors and assigns, and on all designated
beneficiaries of the Participant.
5.6. Severability. If any provision of this Supplemental Plan shall be held or
deemed to be invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, because of its
conflicting with any constitution or statute or rule of law or public
policy or for any other reason, such circumstances shall not have the
effect of rendering the provision or provisions in question invalid,
inoperative or unenforceable in any other jurisdiction or of rendering any
other provision or provisions herein contained invalid, inoperative or
unenforceable, but this Supplemental Plan shall be reformed and construed
in any such jurisdiction or case as if such invalid, inoperative or
unenforceable provision had been contained herein and such provision
reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case.
In Witness Whereof, the Company has caused the Supplemental Plan to be
executed by its duly authorized officer as of the 1/st/ day of April, 2001.
MYKROLIS CORPORATION
By: /s/ Peter W. Walcott
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Title: Vice President & General Counsel
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Schedule A
Initial Members of the Administrative Committee
Robert Crook
Fred Faulkner
Alison McKenzie