Exhibit 10.23
BOEHRINGER MANNHEIM U.S. HOLDINGS, INC.
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SUPPLEMENTAL RETIREMENT PLAN (PLAN NO.1)
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(As Amended and Restated Effective January 1, 1993)
BOEHRINGER MANNHEIM U.S. HOLDINGS, INC.
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SUPPLEMENTAL RETIREMENT PLAN (PLAN NO. 1)
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(As Amended and Restated Effective January 1, 1993)
TABLE OF CONTENTS
PAGE
Article I. Establishment of the Plan ......................................... 1
1.1 Establishment and Restatement ................................... 1
1.2 Purpose ......................................................... 1
Article II. Definitions and Construction ..................................... 1
2.1 Definitions ..................................................... 1
2.2 Gender and Number ............................................... 7
2.3 Employment Rights ............................................... 7
2.4 Applicable Law .................................................. 7
Article III. Administration .................................................. 7
3.1 Administration .................................................. 7
3.2 Finality of Determination ....................................... 8
3.3 Indemnification and Exculpation ................................. 8
3.4 Self Interest ................................................... 9
Article IV. Participation .................................................... 9
4.1 Participation ................................................... 9
4.2 Other Retirement Income ......................................... 9
Article V. Benefits ......................................................... 10
5.1 Retirement Benefits ............................................ 10
5.2 Death Benefits ................................................. 12
5.3 Supplemental Deferred Vested Benefits .......................... 14
5.4 Commencement of Payments ....................................... 14
5.5 Form of Payments ............................................... 15
5.6 Calculation of Offsets and Actuarial Equivalence ............... 15
5.7 Reductions for Certain Surviving Spouses ....................... 18
Article VI. Other Terminations of Employment ................................ 18
6.1 Termination Before Five Years of Service ....................... 18
6.2 Termination for Cause .......................................... 18
Article VII. Noncompetition ................................................. 18
7.1 Noncompetition ................................................. 18
Article VIII. Miscellaneous ................................................. 20
8.1 Amendment and Termination ...................................... 20
8.2 Funding ........................................................ 21
8.3 Tax Liability .................................................... 21
8.4 Assignment ....................................................... 21
8.5 Successors ....................................................... 22
8.6 Severability ..................................................... 22
8.7 Nonuniform Determinations ........................................ 22
8.8 Separation From Other Plans ...................................... 22
8.9 Effective Date ................................................... 22
EXHIBIT A ................................................................... 24
EXHIBIT B ................................................................... 25
BOEHRINGER MANNHEIM U.S. HOLDINGS, INC.
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SUPPLEMENTAL RETIREMENT PLAN (PLAN NO. 1)
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(As Amended and Restated Effective January 1, 1993)
Article I. Establishment of the Plan
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1.1 Establishment and Restatement. BOEHRINGER MANNHEIM U.S. HOLDINGS,
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INC. ("Holdings") heretofore established and currently maintains a supplemental
benefits plan on behalf of its subsidiaries and other affiliated corporations
(collectively, "Boehringer"). Such plan was last amended and restated effective
as of January 1, 1992. Such plan is hereby further amended and restated,
effective as of January 1, 1993, and shall be known as the "Boehringer Mannheim
U.S. Holdings Inc. Supplemental Retirement Plan" (the "Plan").
1.2 Purpose. The Plan is intended to ensure a competitive level of
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retirement benefits to a select group of senior executives of Boehringer, in
order to attract and retain talented executives.
Article II. Definitions and Construction
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2.1 Definitions. Whenever the following terms are used in this Plan,
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they shall have the meaning specified unless a contrary intention is
specifically and clearly indicated.
(a) "Actuarial Equivalent" means a benefit having the same present
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value as the benefit it replaces. For purposes of establishing
actuarial equivalence, present value shall be determined on the
bases of the 1984-UP Mortality Table and the Assumed Interest
Rate.
(b) "Administrative Committee" means the committee of three persons
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designated to administer the Plan. The committee presently
consists of James A. Lent, Barry Simmonds, and Robert H.
Reynolds.
(c) "Assumed Interest Rate" means a rate equal to 120 percent of the
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interest rate used, by the Pension Benefit Guaranty Corporation,
for valuing immediate annuities upon termination of defined
benefit plans. The Assumed
Interest Rate used under the Plan during any Fiscal Year shall be based on
120 percent of the PBGC rate in effect on the first day of the month in
which payment of a Participant's Benefits will be made or commence.
(d) " Benefits" means any amounts payable under the Plan as Supplemental
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Retirement Benefits, Supplemental Early Retirement Benefits, Disability
Retirement Benefits, Death Benefits, or Supplemental Deferred Vested
Benefits, to or on behalf of a Participant who has met the requirements
of the Plan for eligibility for such payments. For the purpose of
calculating a Participant's total service with Boehringer, all service
with any company(s) in the worldwide Holdings group shall be included.
(e) "Board" means the Board of Directors of Holdings.
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(f) "Boehringer" means Holdings; however, references to "Boehringer" shall
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also include (i) references to any subsidiary of Holdings and any other
entity which, together with Holdings, is a member of a "controlled group"
of corporations (as described in section 414(b) of the Code), (ii)
references to any other entity which has been merged into or acquired by
Holdings or by any subsidiary of Holdings which is included in the
Holdings controlled group (as defined above) as long as the merged or
acquired entity was part of the same controlled group as Holdings (or the
Holdings subsidiary) in which it was merged or by which it was acquired
immediately prior to the merger or the acquisition, and (iii) references
to any successor entity resulting from a merger or consolidation with
Holdings or from the transfer of substantially all of the assets of
Holdings.
(g) "Boehringer Income" means the total amount of income, calculated in United
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States dollars, received by a Participant from Boehringer in the form of
base salary in a Fiscal Year plus one-half of the annual cash bonus paid
to the Participant by Boehringer in such Fiscal Year. Boehringer Income
shall also included any Participant deferrals pursuant to a cash or
deferred arrangement under section 401(k) of the Code maintained by
Boehringer, any salary and bonus deferred under any nonqualified deferred
compensation arrangement
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maintained by Boehringer, and any amounts excluded from wages by reason of
any Participant election pursuant to a cafeteria plan under section 125 of
the Code maintained by Boehringer. Except for the annual cash bonus,
Boehringer Income shall not include any incentive compensation (deferred or
otherwise) or any other forms of compensation provided by Boehringer to an
employee.
(h) "CEO" means the Chief Executive Officer of Corange.
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(i) "Code" means the Internal Revenue Code of 1986, as it may be amended from
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time to time. Reference to a section of the Code shall also include any
comparable provision of the Code that supersedes said section.
(j) "Corange" means Corange Limited, a Bermuda corporation.
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(k) "Death Benefits" means benefits payable to a Surviving Spouse upon the
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death of a Participant pursuant to section 5.2.
(l) "Disability" means that because of injury or sickness a Participant cannot
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perform substantially all of the material duties of his position as they
existed immediately prior to such injury or sickness.
(m) "Disability Retirement Date" means the date upon which a Participant ceases
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Employment as the result of a Disability.
(n) "Early Retirement" means Retirement by a Participant at any time on or
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after the Participant's Early Retirement Date, but before his Normal
Retirement Date.
(o) "Early Retirement Date" means the date upon which a Participant retires
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from Employment with Boehringer, at any time earlier than the Participant's
Normal Retirement Date and after the Participant both attains age 55 and
completes five years of service with Boehringer.
(p) "Employment" means employment with Boehringer as determined by Boehringer.
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However, the Administrative Committee may (in its sole discretion) treat
any material diminution in a Participant's responsibilities or any change
from active, full-time status as constituting a termination of Employment.
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(q) "Final Average Boehringer Income" means the annual average of a
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Participant's Boehringer Income for the 36-month period ending on the date
of the Participant's termination of Employment (by reason of Retirement or
otherwise) or the Participant's Disability. If a Participant completed
fewer than 36 months of service with Boehringer, his Final Average
Boehringer Income shall mean the Participant's annual average Boehringer
Income for his entire period of service with Boehringer.
(r) "Fiscal Year" means the fiscal year of Holdings, which is the calendar
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year, unless changed by the Board.
(s) "Holdings" means Boehringer Mannheim U.S. Holdings, Inc., an Indiana
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corporation, or any successor corporation resulting from a merger or
consolidation with Holdings or transfer of substantially all of the assets
of Holdings.
(t) "Independent Actuary" means a person (or a firm of which he is a member)
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who is an "enrolled actuary" under the Employee Retirement Income Security
Act of 1974 ("ERISA")and who is chosen by the Administrative Committee to
assist in performing calculations under the Plan.
(u) "Long-Term Disability Plan" means any long-term disability plan maintained
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by Boehringer and covering a Participant, including benefits paid
thereunder.
(v) "Normal Retirement" means Retirement by a Participant on or after the
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Participant's Normal Retirement Date.
(w) "Normal Retirement Date" means the last day of the Boehringer pay period
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immediately following a Participant's sixty-fifth birthday.
(x) "Other Retirement Income" means the total amount of annual retirement
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income payable to a Participant, calculated in United States dollars, from
any employment source other than Boehringer. Other Retirement Income shall
include--
(1) any employer-provided benefits that a Participant is entitled to
receive (whether or not waived or deferred) from any plan that is a
qualified
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retirement plan under section 401(a) of the Code and that is subject
to the minimum funding requirements of section 412 of the Code;
(2) any employer-derived benefits that a Participant is entitled to
receive (whether or not waived) under a defined benefit retirement
plan maintained outside of the United States;
(3) one-half of any primary Social Security benefits that a participant is
entitled to receive (whether or not waived or deferred); and
(4) any benefits that a Participant is entitled to receive (whether or not
waived or deferred) under a program that is comparable to the United
States Social Security program and that is maintained by a government
other than the United States government.
In calculating any Death Benefits payable under section 5.2(a), "Other
Retirement Income" shall not include any primary Social Security benefits
under paragraph (3) or any benefits comparable to Social Security benefits
under paragraph (4).
(y) "Participant" means an employee of Boehringer selected to participate in
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the Plan as described under section 4.1 and who has formally agreed to
participate in the Plan. An individual shall continue as a Participant
after his termination of Employment with Boehringer until all Benefits
payable hereunder with respect to the individual have been paid or
forfeited under the Plan. The word "Participant" shall not include any
references to the spouse of an employee or of a former employee who
participates in the Plan.
(z) "Plan" means that Boehringer Mannheim U.S. Holdings, Inc. Supplemental
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Retirement Plan (Plan No. 1).
(aa) "Retirement" means the total cessation of Employment for or on behalf of
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Boehringer by a Participant after attaining age 55 and completing at least
five years of service with Boehringer or after attaining age 60.
(bb) "Retirement Date" means the date that a Participant begins receiving
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benefits under this Plan due to Retirement, Disability, or other
termination of Employment.
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(cc) "RIP Plan" means the Boehringer Mannheim U.S. Holdings, Inc. Retirement
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Income Plan.
(dd) "Supplemental Deferred Vested Benefits" means Benefits payable pursuant
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to section 5.3, to a Participant whose Employment has ceased for a
reason other than death, Disability, or Retirement and who is eligible
for a benefit pursuant to the other provisions of the Plan.
(ee) "Supplemental Disability Retirement Benefits" means Benefits payable
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pursuant to section 5.1(c), to a Participant whose Employment has ceased
as a result of Disability.
(ff) "Supplemental Early Retirement Benefits" means reduced Benefits payable
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pursuant to section 5.1(b), upon Early Retirement.
(gg) "Supplemental Retirement Benefits" means Benefits payable to a
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Participant who retires, pursuant to section 5.1(a).
(hh) "Surviving Spouse" means the legally married spouse of a Participant who
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survives that Participant's death.
(ii) "Termination for Cause" means that a Participant's Employment with
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Boehringer has terminated because the Participant engaged in a willful
or deliberate act of commission or omission which is injurious to the
finances or reputation of Boehringer. Termination for Cause shall
include, but is not limited to-
(1) Committing any material breach of this Plan, including, without
limitation, the provisions of Article VII regarding noncompetition,
(2) Committing any dishonest, unethical, fraudulent, or felonious act
either in respect to duties to Boehringer, or which results in
material damage to the business, reputation, or goodwill of
Boehringer,
(3) Gross negligence or intentional wrongdoing in connection with
employment, which has a substantial adverse effect on Boehringer,
its business, or reputation,
(4) Prolonged unexcused absence from duties,
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(5) Material breach of any employment or other agreement with
Boehringer, or
(6) Entering into unauthorized negotiations with any organization
which is competitive with the then present business of Boehringer
regarding the rendering of personal services for such
organization.
If a Participant resigns from Employment with Boehringer, and the
Administrative Committee determines that the resignation was in
anticipation of Termination for Cause, the Participant's resignation
shall be deemed a Termination for Cause.
(jj) "Valuation Date" means the first day of the calendar year for which a
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contribution is made.
2.2 Gender and Number. Except when otherwise indicated by the context,
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words in the masculine gender shall include the feminine and neuter genders; the
plural shall include the singular and the singular shall include the plural.
2.3 Employment Rights. Establishment of the Plan shall be construed to
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give any Participant the right to be retained in the employment of Boehringer or
to any benefits not specifically provided by the Plan.
2.4 Applicable Law. This Plan is fully exempt from Titles II, III, IV of
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ERISA. The Plan shall be governed by and construed in accordance with Title I of
ERISA and the laws of the State of Indiana.
Article III. Administration
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3.1 Administration.
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(a) Except as specifically provided elsewhere in the Plan, the
Administrative Committee shall have all such powers as may be
necessary to carry out the provisions of the Plan and the transaction
of the Plan's business. Upon
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resignation or death of a member of the Administrative Committee, the
vacancy shall be filled by the remaining members of the Administrative
Committee. If the remaining members of the Administrative Committee
fail to agree on a successor, or there are no remaining members, the
successor shall be selected, in writing, by at least two-thirds of the
Participants. If the Participants fail to agree on a successor, the
successor shall be selected by the CEO or the Board.
(b) The Administrative Committee shall, at all times, consist of three
individuals; one of whom is a director of Holdings but who is not an
employee of Boehringer, one of whom is an employee of Corange or
Boehringer (but who is not a Participant), and one of whom is a
Participant. In addition, the Board may appoint a nonvoting Secretary
to assist the Administrative Committee on its work.
(c) The authority granted under this Article shall be subject to the right
of the Board to amend or terminate the Plan, as provided in section
8.1.
3.2 Finality of Determination. The determination of the Administrative
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Committee as to any disputed questions arising under this Plan, including
questions of construction and interpretation shall be final, binding, and
conclusive upon all persons; except where the right to make such determination
is reserved to the CEO or the Board.
3.3 Indemnification and Exculpation. The CEO, the members of the Board,
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the members of the Administrative Committee, their agents and officers, and
employees of Boehringer shall be indemnified and held harmless by Boehringer
against and from any and all loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by them in connection with or resulting from
any claim, action, suit, or proceeding to which they may be a party or in which
they may be involved by reason of any action taken or failure to act under this
Plan and against and from any and all amounts paid by them in settlement (with
Boehringer's written approval) or paid by them in satisfaction of a judgement
in any such action, suit, or proceeding. The foregoing provision shall not be
applicable to any person
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if the loss, cost, liability, or expense is due to such person's gross
negligence or willful misconduct.
3.4 Self Interest. A member of the Administrative Committee who is also a
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Participant shall not vote on any question relating specifically to himself. The
CEO shall not exercise any discretionary authority under the Plan on any
question relating specifically to himself.
Article IV. Participation
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4.1 Participation. Participants in the Plan shall be selected by the CEO
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or the Board from senior executives of Boehringer. Selections will be based upon
the CEO's or the Board's determination of the past, present, and expected future
contributions by executives to the long-term performance and growth of
Boehringer. Executives selected by the CEO or the Board must accept
participation in the Plan by written notice to the Administrative Committee. As
a condition of participation in the Plan, candidates for participation shall be
required to execute such other documents and agreements and to agree to such
other conditions as the Administrative Committee may impose.
4.2 Other Retirement Income.
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(a) Executives who agree to participate also agree to submit a complete
description of their Other Retirement Income, as defined in this Plan, at the
time they accept participation and to update the description of Other Retirement
Income at the beginning of each Fiscal Year. Foreign source income includable in
Other Retirement Income will be translated into United States dollars using the
rate of exchange accepted by the Internal Revenue Service for the preceding tax
year. Upon Boehringer's written request, the Participant agrees to submit the
last full year tax return filed with the Internal Revenue Service to the outside
auditor of Boehringer's choice, in order to verify the Other Retirement Income
reported by the Participant.
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(b) A Participant who has received or receives a distribution in any form
(including a lump sum payment) under a non-Boehringer retirement plan
will report that amount as Other Retirement Income.
(c) The final determination of the exact amount of Other Retirement Income
shall be made by the Administrative Committee and shall be binding upon
all Participants.
Article V. Benefits
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5.1 Retirement Benefits.
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(a) A Participant who attains his Normal Retirement Date while employed by
Boehringer shall be eligible to receive Supplemental Retirement Benefits
under the Plan. The Supplemental Retirement Benefits will begin as soon
as practical following the date of the Participant's Normal Retirement.
A Participant's Supplemental Retirement Benefit will be an annual
amount, payable for the Participant's lifetime, equal to--
(1) 60 percent of the Participant's Final Average Boehringer Income,
reduced by
(2) the sum of the Participant's Other Retirement Income, the
benefit payable to the Participant under the RIP Plan and any
benefit payable to the Participant under any defined benefit
retirement arrangement maintained by Corange or by any non-
United States based affiliate of Corange.
(b) A Participant who attains his Early Retirement Date while employed by
Boehringer and retires before his Normal Retirement Date shall be
eligible to receive Supplemental Early Retirement Benefits under the
Plan. The Supplemental Early Retirement Benefits will begin as soon as
practical following the Participant's Early Retirement. Except as
adjusted below, a Participant's Supplemental Early Retirement Benefits
will be an annual amount computed in the same manner as Supplemental
Retirement Benefits
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under subsection (a). The following calculations shall be applied in
determining the Supplemental Early Retirement Benefit:
(i) The amount determined in section 5.1(a)(1) (before the application of
the offset in section 5.1(a)(2)) shall be reduced to reflect the
early commencement of the Benefit. The reduction for early
commencement shall be .25 percent for each of the first 60 months and
.41667 percent for each of the next 60 months (if any), that
commencement of the Supplemental Early Retirement Benefits precedes
the Participant's Normal Retirement Date.
(ii) Additionally, if the Participant entered the Plan after January 1,
1992 and has completed fewer than ten complete years of service with
Boehringer, his Supplemental Early Retirement Benefit (after
reduction for early commencement) will be further reduced. The
reduction shall be .41667 percent for each whole or fractional month
that the Participant's years of service are less than ten years. This
service reduction (in addition to the early commencement reduction)
shall be applied to the amount determined under section 5.1(a)(1)
before the application of the offset in section 5.1(a)(2), but after
the application of the reduction in paragraph (i).
(iii) Instead of the reductions described in paragraph (ii), if the
Participant entered the Plan before January 1, 1992 and has completed
fewer than five complete years of service with Boehringer, his
Supplemental Early Retirement Benefit (after reduction for early
commencement) will be further reduced. The reduction shall be .833
percent for each whole or fractional month that the Participant's
years of service are less than five years, and this service reduction
(in addition to the early commencement reduction) shall be applied to
the amount determined under section 5.1(a)(1) before the application
of the offset in section 5.1(a)(2), but after the application of the
reduction in paragraph (i).
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(c) A Participant who incurs a Disability while employed by Boehringer shall be
eligible to receive Supplemental Disability Retirement Benefits under the
Plan if the Participant completed five years of service with Boehringer or
attained age 60 prior to the Participant's Disability Retirement Date. If a
Participant is not enrolled in the Long-Term Disability Plan, the
Participant shall receive no Supplemental Disability Retirement Benefits
under this Plan. The Supplemental Disability Retirement Benefits will begin
as soon as practical following the Participant's Disability Retirement
Date. A Participant's Supplemental Disability Retirement Benefit will be an
annual amount, payable for the Participant's lifetime, equal to--
(1) 60 percent of the Participant's Final Average Boehringer Income,
reduced by
(2) the sum of--
(A) the amount the Participant would be eligible to receive under
the Long-Term Disability Plan (assuming the Participant
selected the highest level of coverage available under such
Plan), plus
(B) the sum of the Participant's Other Retirement Income and the
benefit payable to the Participant under the RIP Plan.
The Participant's Supplemental Disability Retirement Benefit will not be
reduced to reflect commencement thereof before the Participant's Normal
Retirement Date or the Participant's failure to complete five years of
service with Boehringer. If a Participant recovers from a Disability, his
Supplemental Disability Retirement Benefits shall cease. Upon his
subsequent Retirement or other termination of employment, he shall receive
a benefit pursuant to the remaining provisions of this Plan, to the extent
that he has satisfied the Plan requirements for such Benefits.
5.2 Death Benefits.
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(a) The Surviving Spouse of a participant will be eligible to receive a
death benefit under this section 5.2(a) if the Participant dies while
employed by Boehringer and prior to the commencement of benefits under
section 5.1, but
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after either (1) completing five years of service with Boehringer or (2)
attaining age 60. The amount of such benefit will be annual amount equal to
50 percent of the annual amount of Supplemental Retirement Benefits which
would have been payable to the Participant, based on his Boehringer Income
at his death, if the Participant had retired on his Normal Retirement Date
and been entitled to receive benefits under section 5.1(a). Such payments
will begin on the first day of the month next following the date of the
Participant's death.
(b) The Surviving Spouse of a Participant will be eligible to receive a death
benefit under this section 5.2(b) if the Participant dies after the
commencement of Benefits under section 5.1 or 5.3. The amount of such
benefit will be an annual amount equal to 50 percent of the annual amount
of the Benefits payable to the Participant during his lifetime; provided,
however, that for purposes of determining the amount of death benefit
payable, the Benefits payable during the Participant's lifetime shall be
recalculated by excluding from Other Retirement Income any primary Social
Security benefit payable to the Surviving Spouse by reason of the
Participant's death and by including any payments to the Surviving Spouse
under the Long-Term Disability Plan. Such payments will begin on the first
day of the month next following the date of the Participant's death.
(c) The Surviving Spouse of a Participant will be eligible to receive a death
benefit under this section 5.2(c) if the Participant dies after
termination of employment with Boehringer and prior to the commencement of
Supplemental Deferred Vested Benefits under section 5.3, but after
completing ten years of service with Boehringer (five years if the
Participant entered the Plan before January 1, 1992). The amount of such
benefit will be an annual amount equal to 50 percent of the annual amount
of Supplemental Deferred Vested Benefits which would have been available to
the Participant under section 5.3 on the first day of the month next
following the Participant's sixty-fifth birthday. Such payments will begin
on the first day of the month
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next following the date the Participant would have attained his
sixty-fifth birthday.
(d) Payments under this section will be continued to the Surviving Spouse
until the Surviving Spouse's death.
5.3 Supplemental Deferred Vested Benefits. A Participant whose Employment
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with Boehringer is terminated after completing ten years of service with
Boehringer (five years if the Participant entered the Plan before
January 1, 1992) but before becoming eligible for Supplemental Retirement
Benefits or Supplemental Early Retirement Benefits shall be eligible to receive
Supplemental Deferred Vested Benefits under the Plan. The Supplemental Deferred
Vested Benefits will begin on the first day of the month coincident with or next
following the Participant's sixty-fifth birthday. A Participant's Supplemental
Deferred Vested Benefits will be an annual amount computed in the same manner as
Supplemental Retirement Benefits under section 5.1(a), based on his Final
Average Boehringer Income at his termination of employment and his projected age
65 Other Retirement Income and benefit under the RIP Plan.
5.4 Commencement of Payments.
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(a) Except as otherwise specified in this section 5.4, benefits payable
under sections 5.1, 5.2, and 5.3 will commence on the dates specified
therein.
(b) A Participant eligible for a benefit under 5.3 or a Surviving Spouse
eligible for a benefit under section 5.2(c) may request earlier
commencement of such benefit. The Administrative Committee may allow
Benefits payable with respect to the Participant or survivors spouse
to commence at any time after the Participant attains (or would have
attained) age 55.
(c) The Administrative Committee may grant early commencement of benefits
upon the written petition of the Participant or, if the Participant
is deceased, the Participant's Surviving Spouse. The approval or
denial of such petition shall be in the sole discretion of the
Administrative Committee. However, such petition may not be approved
unless the Participant, or Surviving Spouse,
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can demonstrate either (1) proof of financial need, (2) that such
payment is in the best interest of Boehringer, or (3) that such
payment will not result in a significant financial detriment to
Boehringer. If benefits commence early under this section, they shall
be reduced to reflect the early commencement thereof and shall be the
Actuarial Equivalent of the Benefits otherwise payable under the
Plan.
5.5 Form of Payments.
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(a) Benefit payments under the Plan shall normally be made for the life
of the Participant and his Surviving Spouse, as described elsewhere
in this Article V. However, upon the written petition of the
Participant (or the Participant's Surviving Spouse if the Participant
is dead), the Administrative Committee may provide for all or any
part of the benefits payable with respect to a Participant to be made
in a single lump sum payment. The approval or denial of such petition
shall be in the sole discretion of the Administrative Committee;
provided, however, such petition may not be approved unless the
Participant (or Surviving Spouse) can demonstrate either (1) proof of
financial need, (2) that such payment is in the best interest of
Boehringer, or (3) that such payment will not result in a significant
financial detriment to Boehringer. A Participant who requests a lump
sum payment as a condition of the Administrative Committee's
approval, shall execute such other documents and agreements as are
consistent with the terms of this Plan as the Administrative
Committee may impose.
(b) Lump sum payments under this section shall be the Actuarial
Equivalent of the Benefits payable with respect to the Participant.
5.6 Calculation of Offsets and Actuarial Equivalence.
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(a) The Administrative Committee is authorized to interpret the terms of
the Plan and calculate all Benefits payable under the Plan. Such
interpretations shall comply with the rules contained in this
section. Such calculations shall be made by, or with the guidance of,
the Independent Actuary. However,
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subsection (d) shall only apply to Participants who entered the Plan after
January 1, 1992.
(b) The offset under this Plant for a married Participant's Other Retirement
Income and under the RIP Plan shall be calculated as a 50 percent joint and
survivor annuity (with the Participant's Surviving Spouse as the contingent
annuitant) beginning at the later of (1) the Participant's Retirement Date
or (2) the earliest date that the Other Retirement Income or RIP payments
are available. The offset under this Plan for an unmarried Participant's
Other Retirement Income and under the RIP Plan shall be calculated as a
single life annuity beginning on the later of (A) the Participant's
Retirement Date or (B) the earliest date that the Other Retirement Income
or RIP Plan payments are available. Such annuities shall be the Actuarial
Equivalent of the amount of Other Retirement Income or the amount under
the RIP Plan actually payable (or paid) to the Participant.
(c) If a Participant (or his Surviving Spouse) is receiving payments under this
Plan in a lump sum-
(1) If the Participant's Other Retirement Income or benefit under the RIP
Plan is either maintained in an individually-maintained account or is
paid as a lump sum, then the offset for the Other Retirement Income or
the benefit under the RIP Plan (as applicable) shall be determined on
the basis of such account balance or lump sum as of the Retirement
Date.
(2) If the Participant's Other Retirement Income is maintained under a
defined benefit plan, then the offset for the Other Retirement Income
shall be determined as of the date payment of the lump sum under this
Plan is payable.
(d) If the payment of Other Retirement Income begins before the payment of
Benefits under this Plant, the offset for the Other Retirement Income shall
be based on the sum of (A) the amount of such Other Retirement Income
payments made when Benefits are payable under this Plan, and (B) the
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annuity equivalent of all payments made before Benefits are payable
under this Plan, plus interest thereon. For purposes of this
subsection (d), interest on any payments of Other Retirement Income
shall be based on 120 percent of the interest rate used, by the
Pension Benefit Guaranty Corporation, for valuing immediate annuities
upon termination of defined benefit plans. The interest rate used
shall be based on such PBGC rates as in effect on the first day of
each Plan Year for the period between payment of the Other Retirement
Income and the commencement of Benefits under this Plan.
(e) For purposes of applying this section 5.6--
(1) If a benefit under this Plan is payable as a lump sum, a
Participant's primary Social Security benefit will be based on
the law in effect on his Retirement Date and will be determined
on the assumption that the maximum Social Security benefits
will increase at an annual rate equal to the Assumed Interest
Rate in effect at the date on which payment of a Participant's
Benefits commence, minus 200 basis points.
(2) If the benefit under this Plan is payable as an annuity
beginning before a participant's sixty-second birthday, the
Participant's primary Social Security benefit will equal the
maximum primary Social Security benefit based on the law in
effect on the later of the Participant's Retirement Date or
the Participant's sixty-second birthday.
(f) In calculating Disability retirement benefits under section 5.3, the
Social Security benefit used under paragraph (3) will be based on the
actual Social Security disability award to the Participant.
(g) The offset under this Plan for benefits under any defined retirement
arrangement maintained by Corange or any of its non-United States
based affiliates shall be calculated by the Administrative Committee,
in its sole discretion, consistent with Section 5.6(b) above.
(h) For purposes of Section 5.1(c) and Section 5.2(b), the offsets for
amounts payable under the Long-Term Disability Plan shall only be
effected for the
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calendar months in which amounts are actually payable under the
Long-Term Disability Plan.
5.7 Reductions for Certain Surviving Spouses. If a Surviving Spouse is
----------------------------------------
entitled to Benefits under this Article V, and if the Surviving Spouse is more
than ten years younger than the Participant, the amount otherwise payable to the
Surviving Spouse hereunder shall be reduced to reflect the actuarial value of
such age difference. The Surviving Spouse's benefit shall be reduced so that it
is the Actuarial Equivalent of the benefit payable to a Surviving Spouse who is
ten years younger than the Participant.
Article VI, Other Terminations of Employment
---------------------------------------------
6.1 Termination Before Five Years of Service. If a Participant's
----------------------------------------
Employment with Boehringer terminates for any reason other than Retirement,
death or Disability before the Participant completes ten years of service with
Boehringer (five years in the case of a Participant who entered the Plan before
January 1, 1992), the Participant (and his Surviving Spouse) will not be
entitled to any benefits under the Plan. If a Participant's Employment with
Boehringer terminates due to death or Disability, and before the Participant
completes five years of service with Boehringer or attains age 60, the
Participant (and his Surviving Spouse) will not be entitled to any benefits
under the Plan.
6.2 Termination for Cause. Notwithstanding anything to the contrary
---------------------
contained elsewhere in this Plan, any Participant whose employment is terminated
under circumstances that constitute Termination for Cause will not be entitled
to any benefits under the Plan. This provision shall apply without regard to
the Participant's age or years of Boehringer service at the time of such
termination.
Article VII, Noncompetition
---------------------------
7.1 Noncompetition. The Participant's right to receive Benefits provided
--------------
in this Plan and to have any Benefits paid to his Surviving Spouse under this
Plan are further conditioned upon the following terms and conditions:
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(a) The Participant will not act, directly or indirectly, as a stockholder,
officer, director, employee, agent, sole proprietor, partner, or
consultant of, or otherwise participate in, any enterprise or organization
which is competitive with the then present business of Boehringer, as it
is now being conducted or may be conducted during the payment of Benefits
under the Plan. This does not include a financial interest in widely held
corporations which are quoted and sold on the open market, unless (1) the
amount held is in excess of 10 percent of the outstanding stock of that
corporation, or (2) the stock has a value representing more than 100
percent of the individual's personal net worth.
(b) The Particpant will not knowingly participate, directly or indirectly, in
the employment, solicitation for employment, or advice or recommendation
to any person or business entity that he or it employ, or solicit for
employment, any individual now or hereafter employed in other than an
hourly-paid capacity by Boehringer, including any dealer, distributor, or
independent contractor acting as an agent of Boehringer with respect to
the sale or distribution of products sold by Boehringer, without the prior
express written consent of Boehringer.
(c) The Participant will not solicit, contact, or communicate with any
physician, scientist, or other person who is or has been involved in the
development of Boehringer's products during the Participant's employment
with Boehringer concerning the development of products reasonably related
to the present business of Boehringer, as it is now being conducted or may
be conducted during the payment of Benefits under the Plan, without the
express prior written consent of Boehringer.
(d) The Participant will treat as confidential and will not, without prior
written authorization from Boehringer, directly or indirectly disclose to
any person, firm, association, or corporation, or use for Participant's
own benefit, any financial statements, information, plans, products, data,
results of tests or surveys, customer or supplier lists, or any other
trade secrets or confidential
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material or information regarding Boehringer, including any and all
information and instructions, technical or otherwise, obtained,
compiled, prepared, issued, or communicated for the use of Boehringer,
or any information concerning the present or future products,
processes or methods of operation of Boehringer, or information
concerning improvements or inventions or know-how relating to the same
or any part thereof, it being the intent of Boehringer to restrict
Participant from disseminating or using for Participant's own benefit
any information belonging directly or indirectly to Boehringer, or
agents which is not readily available to the general public.
(e) The Participant agrees to return to Boehringer all data, drawings,
prints, and other written information (including all copies thereof)
in the Participant's possession or under the Participant's control
which were prepared by or for the Participant or furnished Participant
by Boehringer or its subsidiaries, affiliates, employees, agents, or
consultants during the term of the Participant's employment by
Boehringer prior to termination.
(f) The participant will not, directly or indirectly, taken any action
which could or would interfere with, damage or destroy the goodwill
and reputation of Boehringer or any of its directors, officers,
employees, operations, or products.
Article VIII. Miscellaneous
---------------------------
8.1 Amendment and Termination. The CEO or the Board may at any time
-------------------------
terminate or amend the Plan in any respect. However, a termination or amendment
of the Plan shall not, without the written consent of the Participant reduce the
amount payable with respect to the Participant, based on-
(a) the Participant's Boehringer Income at the time the amendment is
adopted,
(b) the Plan provisions in effect at the time the amendment is adopted,
and
(c) the value of offsets for Other Retirement Income as determined when
Benefit payments under this Plan commence.
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8.2 Funding.
-------
(a) All benefits paid under the Plan shall be paid from the general assets
of Boehringer, except to the extent paid from any "grantor trust"
(under sections 671 through 677 of the Code) maintained by Boehringer
in connection with the Plan. Said trust is subject to the claims of
creditors of Boehringer in the event of its insolvency. This Plan
shall not be interpreted to provide any Participant or Surviving
Spouse with any secured interest or right to any assets of Boehringer,
and no Participant or Surviving Spouse shall acquire any interest
greater than that of an unsecured creditor.
(b) Boehringer shall make contributions to the trust no less often than
twice per year. The Administrative Committee shall ensure that
contributions are calculated using the guidance and methodology of
Financial Accounting Standards Board statement No. 87. The first
contribution required hereunder each year, to be made no later than
July 1 of such year, shall fund the annual cost for the Participants
on June 30 of such year. The second contribution required hereunder
will be made no later than December 31 of each year. The second
contribution shall fund the annual cost for individuals who become
Participants in this Plan between July 1 and December 31 of such year.
Boehringer may, in its sole discretion, make additional contributions
to the trust to fund benefits accrued under this Plan.
8.3 Tax Liability. Boehringer may withhold, or direct the withholding of,
-------------
from any payment of Benefits hereunder any taxes required to be withheld and
such sum as Boehringer may reasonably estimate to be necessary to cover any
taxes for which Boehringer may be liable and which may be assessed with regard
to such payment.
8.4 Assignment. The Participant may not assign, pledge, or otherwise
----------
transfer or encumber any of Participant's Benefits except as permitted by
agreement of the CEO or the Board.
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8.5 Successors. The Plan and the rights and obligations of Boehringer
----------
hereunder shall be binding upon, and inure to the benefits of the Participants
and their Surviving Spouse only, and the successors and assigns of Boehringer.
8.6 Severability. In the event that any one or more of the provisions of this
------------
Plan shall be held to be invalid, illegal, or unenforceable, the validity,
legality, or enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
8.7 Nonuniform Determinations. The determinations of the CEO, the Board, or
-------------------------
the Administrative Committee under the Plan need not be uniform and may be made
selectively among Participants who receive, or are eligible to receive, Benefits
under the Plan, whether or not such Participants are similarly situated. Such
determination, however, may not result in payment to a Participant of an amount
that is less than the amount that is otherwise provided for under the terms of
this Plan. The Administrative Committee may, with the approval of the CEO on the
Board, waive the application of specific provisions of the Plan for individual
Participants. Such waivers may not adversely affect the Participant, and can be
granted only if the waiver will not have a material adverse economic or
competitive impact on the Plan or Boehringer.
8.8 Separation From Other Plans. Except as otherwise required by law, no
---------------------------
Benefits under the Plan shall be taken into account in determining any benefit
under any other pension, retirement, thrift, profit sharing, 401(k), group
insurance, or other benefit plan maintained or hereafter established by
Boehringer.
8.9 Effective Date. This Plan, as initially adopted, was effective January 1,
--------------
1985. The Plan, as restated herein, shall be effective January 1, 1993.
**********
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IN WITNESS WHEREOF, BOEHRINGER MANNHEIM U.S. HOLDINGS, INC. has caused
this instrument to be executed by its duly a officers on this_____day of
____________, 1993, effective as of the first day of January, 1993.
BOEHRINGER MANNHEIMM U.S.
HOLDINGS, INC.
By______________________
ATTEST:
By__________________________
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EXHIBIT A
Boehringer Mannheim U.S. Holdings, Inc.
Supplemental Retirement Plan (Plan No. 1)
Election Form
The undersigned, an employee of Boehringer Mannheim U.S. Holdings, Inc.
(including its subsidiaries and affiliates), having been selected by the CEO or
the Board of Directors of Boehringer Mannheim U.S. Holdings, Inc. to participate
in the Boehringer Mannheim U.S. Holdings, Inc. Supplemental Retirement Plan does
hereby acknowledge having read the Supplemental Retirement Plan (Plan No. 1),
prior to executing this Election Form, understanding the same and in
consideration of becoming a Participant under the Plan, agrees to be bound by
the terms and conditions of the Plan in all respect.
IN WITNESS WHEREOF, I have executed this Election Form to the Boehringer
Mannheim U.S. Holdings, Inc. Supplemental Retirement Plan (Plan No.1), effective
_____________________.
WITNESS: PARTICIPANT
___________________________________ ___________________________________
Signature
___________________________________
Printed or Typed Name
RECEIVED AND ACKNOWLEDGED:
BOEHRINGER MANNHEIM U.S.
HOLDINGS, INC.
By___________________________________
Signature
_____________________________________
_____________________________________
Printed or Typed Name and Title
Date_________________________________
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EXHIBIT B
Boehringer Mannheim U.S. Holdings, Inc.
Supplemental Retirement Plan (Plan No. 1)
Acceptance Form
The undersigned, an employee of Boehringer Mannheim U.S. Holdings, Inc.
(including its subsidiaries and affiliates), having been selected by the CEO or
the Board of Directors of Boehringer Mannheim U.S. Holdings, Inc. to participate
in the Boehringer Mannheim U.S. Holdings, Inc. Supplemental Retirement Plan does
hereby acknowledge having read the Supplemental Retirement Plan (Plan No. 1)
(the "Plan"), as amended, prior to executing this Acceptance Form, understanding
the same.
In consideration of my continued participation in the Plan, I hereby agree to be
bound by the terms and conditions of the Plan, as amended and restated effective
January 1, 1993, in all respects. I also accept the benefits provided to me
under the terms of the Plan, as so amended, in lieu of all benefits provided to
me and my beneficiaries under the terms of the Plan, prior to said restatement,
and waive all rights and benefits that may have accrued to me under the terms of
the Plan prior to said restatement.
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IN WITNESS WHEREOF, I have executed this Acceptance Form to the Boehringer
Mannheim U.S. Holdings, Inc. Supplemental Retirement Plan (Plan No. 1), as
restated effective January 1, 1993, this _______ day of _____________, 199__.
WITNESS: PARTICIPANT'S SPOUSE
_________________________________ ______________________________________
Signature
______________________________________
Printed or Typed Name
RECEIVED AND ACKNOWLEDGED:
BOEHRINGER MANNHEIM U.S.
HOLDINGS, INC.
By ______________________________
Signature
_________________________________
_________________________________
Printed or Typed Name and Title
Date ____________________________
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