IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED COMPENSATION PLAN
Effective August 15, 2002
Restated Effective January 1, 2005
IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED COMPENSATION PLAN
IMPAX LABORATORIES, INC. currently maintains the Impax
Laboratories, Inc. 401(k) Plan, a tax qualified retirement plan which allows for
the deferral of compensation for retirement purposes and which complies with
Section 401(k) of the Internal Revenue Code of 1986 ("Code");
IMPAX LABORATORIES, INC. has established the Impax Laboratories,
Inc. Executive Non-qualified Deferred Compensation Plan ("Plan"), a
non-qualified deferred compensation plan for a limited group of executives which
allows them to defer additional compensation and supplement retirement savings
under the Impax Laboratories, Inc. 401(k) Plan;
IMPAX LABORATORIES, INC. now intends to amend and restate the
Plan to incorporate the requirements of Section 409A of the Internal Revenue
Code of 1986 as amended by the American Jobs Creations Act of 2004; and
NOW, THEREFORE, to effectuate its intentions, Impax
Laboratories, Inc. hereby amends and restates the Impax Laboratories, Inc.,
Executive Non-qualified Deferred Compensation Plan effective as of the 1st day
of January 2005.
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IMPAX LABORATORIES, INC.
EXECUTIVE NON-QUALIFIED DEFERRED COMPENSATION PLAN
Table of Contents
ARTICLE I DEFINITIONS......................................................1
ARTICLE II PARTICIPATION IN THE PLAN........................................4
ARTICLE III CONTRIBUTIONS....................................................5
ARTICLE IV PARTICIPANT ACCOUNTS.............................................7
ARTICLE V BENEFITS.........................................................8
ARTICLE VI ADMINISTRATION..................................................10
ARTICLE VII CLAIMS PROCEDURE................................................13
ARTICLE VIII AMENDMENT AND TERMINATION.......................................15
ARTICLE IX MISCELLANEOUS...................................................16
ARTICLE I
DEFINITIONS
1.1 Account means a recordkeeping of the balance of Plan benefits
attributable to a Participant.
1.2 Administrator means the individual or committee appointed to administer
this Plan pursuant to Article VI. In the absence of such appointment,
the Employer shall be the Administrator.
1.3 Base Pay means an Eligible Employee's annualized base compensation. For
purposes of this definition, base compensation shall include amounts
which are deferred under the Impax 401(k) Plan. With respect to an
Eligible Consultant, Base Pay shall mean the base remuneration for
services as prescribed in his/her consulting agreement.
1.4 Beneficiary means the person, persons, trust or other entity that a
Participant designates to receive payments in the event of his/her death
by a written revocable designation filed with the Administrator.
1.5 Board means the Board of Directors of Impax Laboratories, Inc., a
Delaware Corporation.
1.6 Bonus means any cash remuneration paid to an Eligible Employee as a
specific incentive award pursuant to any incentive plan or arrangement
adopted by the Board, including any amount which would have been paid
but for the Participant's election to make a contribution therefrom to
this Plan or the Impax 401(k) Plan.
1.7 Change in Control means an objectively determined event which impacts
the Employer for whom the Participant renders services and shall
include:
(a) a change in ownership in which a person, group or entity
acquires more than fifty percent (50%) of the total fair market
value or total voting power of the stock of the Employer;
(b) a change in effective control in which (1) a person, group or
entity acquires (in a 12-month period) ownership of stock with
35% or more of the total voting power of the stock of the
Employer or (2) a majority of the Employer's Board is replaced
in a 12-month period by directors whose appointment or election
was not endorsed by a majority of the Board before their
appointment or election; or
(c) a change in ownership of a substantial portion of the Employer's
assets in which a person group or entity acquires 40% or more of
the gross fair market value of the Employer's assets.
1.8 Code means the Internal Revenue Code of 1986, as amended, and the same
as may be further amended from time to time.
1.9 Deferral Agreement means a written agreement between a Participant and
the Employer under which a Participant agrees to defer a portion of
his/her Base Pay, Bonus and/or 401(k) Plan refunds.
1.10 Deferral Contribution means a Participant's elective contribution
described in Article III.
1.11 Disability means an illness or injury which completely prevents a
Participant from performing the Participant's occupation or which
otherwise entitles the Participant to receive long-term disability
benefits under a plan or program for such benefits sponsored by the
Employer. Disability shall be determined in a uniform manner by the
Administrator. The above notwithstanding, a Participant shall not be
deemed to have a Disability unless he/she is expected to be separated
from service for a period of at least twelve months as a direct result
of such illness or injury and has no reasonable prospect of returning to
service with the Employer.
1.12 Effective Date means August 15, 2002.
1.13 Eligible Consultant means any consultant to the Employer as designated
by the Board.
1.14 Eligible Employee means any executive-level employee of the Employer, as
designated by the Board.
1.15 Employer means Impax Laboratories, Inc., and any successor thereto, and
any affiliated company which is a Participant of a controlled group of
corporations within the meaning of Section 1563(a) of the Code with
Impax Laboratories, Inc. and which adopts this Plan with consent of the
Board.
1.16 Enrollment Period means the period from December 1st through December
31st occurring prior to the first day of a Plan Year.
1.17 Exempt Amounts means vested balance of a Participant's Account as of
January 1, 2005 and earnings attributable to such amounts.
1.18 409A Amounts means that portion of a Participant's Account which vests
on and after January 1, 2005 and earning attributable to such amounts.
1.19 Impax 401(k) Plan means the Impax Laboratories, Inc. 401(k) Plan, a
tax-qualified retirement plan maintained pursuant to Section 401(k) of
the Code.
1.20 Initial Enrollment Period shall mean the thirty (30) day period
following an individual's designation as an Eligible Employee or
Eligible Consultant.
1.21 Investment Fund(s) means the investment option(s) designated by the
Employer from time to time which serve as a means to measure value
increases or decreases with respect to a Participant's Accounts.
1.22 Participant means any Eligible Employee or Eligible Consultant who has
elected to participate in the Plan pursuant to Article II.
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1.23 Plan means the Impax Laboratories Executive Non-qualified Deferred
Compensation Plan.
1.24 Plan Year means the twelve (12) consecutive month period beginning on
each January 1st and ending on the following December 31st. The Plan
Year which begins on September 1, 2002 shall end on December 31, 2002.
1.25 Restatement Effective Date means January 1, 2005.
1.26 Retirement means any severance from service by a Participant for any
reason other than death or Disability after: (a) attaining age 65; or
(b) attaining age 55 provided that the Participant has five (5) Years of
Service.
1.27 Specified Employee means any Participant who is (i) an officer of the
Employer and (ii) receives annual compensation from the Employer of
$130,000 or more. The term Specified Employee shall also include any
other individual who satisfies the definition of Specified Employee
under Code Section 409A.
1.28 Unforseeable Emergency shall mean severe financial hardship to the
Participant resulting from an illness or accident of the Participant,
the Participant's spouse or a dependent (as defined in Section 152(a) of
the Code) of the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant.
1.29 Year of Service means each period of twelve consecutive months beginning
on the Employee's first day of employment and each anniversary thereof
in which the Employee is an Eligible Employee.
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ARTICLE II
PARTICIPATION IN THE PLAN
2.1 Commencement of Participation - Eligible Employer. Each Eligible
Employee shall become eligible to participate in the Plan on the
Effective Date provided that such Eligible Employee has satisfied the
requirements of Section 2.3. Any individual who becomes an Eligible
Employee after the Effective Date shall become a Participant as of the
first day of any January, April, July or October immediately following
his/her satisfaction of the requirements of Section 2.3.
2.2 Commencement of Participation - Eligible Consultant. Each Eligible
Consultant shall become eligible to participate in the Plan during
his/her Initial Enrollment Period. An Eligible Consultant shall be
permitted to participate in the Plan only if the terms of his/her
consulting agreement expressly provided for such participation and
he/she satisfies the requirements of Section 2.3.
2.3 Procedure For and Effect of Admission. Each Eligible Employee or
Eligible Consultant who desires to participate in this Plan shall
complete such forms and provide such data as is reasonably required by
the Employer during his/her Initial Enrollment Period or any subsequent
Enrollment Period. By becoming a Participant, the Eligible Employee or
Eligible Consultant shall be deemed to have consented to the provisions
of this Plan and all amendments hereto.
2.4 Cessation of Partnership. A Participant shall cease to be an active
Participant on the earlier of:
(a) the date on which the Plan terminates,
(b) the date on which he/she ceases to be an Eligible Employee, or
(c) the date on which he/she ceases to be an Eligible Consultant.
A former active Participant will be considered a Participant for all
purposes, except with respect to the right to make contributions,
provided that he/she retains an Account.
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ARTICLE III
CONTRIBUTIONS
3.1 Deferral of Base Pay and Bonuses. Each Participant may authorize the
Employer to reduce: (i) his/her Base Pay with respect to a Plan Year;
and/or (ii) his/her Bonus with respect to a Plan Year; provided,
however, that the total amount deferred under this Section will not
exceed ten percent (10%) of a Participant's combined Base Pay and Bonus
payable with respect to such Plan Year. The Participant must complete
and file a Deferral Agreement with the Administrator during the
Enrollment Period which precedes the Plan Year in which the Base Pay
would have been be paid. With respect to any Bonus payable after January
1, 2005 and which is not subject to a Deferral Election as of January 1,
2005, the Participant must complete and file a Deferral Agreement with
the Administrator on or before the sixth month prior to the last day of
period over which the Bonus shall be determined. With respect to the
Participant's Initial Enrollment Period, the Deferral Agreement shall
apply to Base Pay and Bonus payable in the remainder of the Plan Year
which contains the Initial Enrollment Period. A deferral shall be made
from either Base Pay or Bonus as the Participant shall specify, however,
to the extent the deferral is to be made from Bonus and if no Bonus, or
an insufficient Bonus, is payable, the deferral shall be reduced. The
Deferral Agreement shall state the amount to be deferred as a percentage
of the Participant's Base Pay or Bonus.
3.2 Deferral of 401(k) Plan Refund. In addition to deferrals under Section
3.1, each Participant may authorize the Employer to credit his/her
Account with any excess deferrals which are to be returned to the
Participant from the Impax 401(k) Plan due to the application of Code
Section 401(k)(3). A Participant must complete and file a Deferral
Agreement with the Administrator during the Enrollment Period which
proceeds the first day of the Plan Year of the 401(k) Plan with respect
to which such excess deferrals relate. If a Participant elects to
allocate excess deferrals to this Plan, such election shall apply to
100% of the Participant's excess deferral.
3.3 Rules Governing Deferral Contributions.
(a) Each election to defer is irrevocable during the Plan Year or
other period to which it applies.
(b) The amount that a Participant elects to defer shall be credited
to the Participant's Accounts as soon as practicable, but no
later than 30 days following the date on which the Participant
is paid the non-deferred portion of the compensation which is
the source of the deferral. (In the case of a Participant
electing to defer his/her Bonus and/or 401(k) Plan refund, the
amount shall be credited to the Participant's Account no later
than 30 days following the date on which the Bonus or 401(k)
Plan refund would have been paid to the Participant had he/she
not elected to defer such amount.)
3.4 Matching Contributions. The Employer shall make a contribution for each
Participant which shall equal fifty percent (50%) of the Participant's
Deferred Contribution made
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from his/her Base Pay and Bonus; provided, however, that in no event
shall the total Matching Contribution exceed five percent (5%) of the
Participant's combined Base Pay and Bonus. The above notwithstanding,
the Employer, by action of its Board, may reduce the level of matching
contribution or eliminate the Matching Contribution at any time at its
discretion.
3.5 Vesting. Benefits derived from Deferral Contributions are not subject to
forfeiture for any reason. Except as provided below, benefits derived
from Matching Contribution shall vest in accordance with the following
schedule. The above notwithstanding benefit shall not be forfeited as a
result of the Participant's separation from employment due to death,
disability, termination of the Plan or Change in Control.
Years of Service Vesting Percentage
---------------- ------------------
Less than 1.................................................. 0%
1 but less than 2............................................ 20%
2 but less than 3............................................ 40%
3 but less than 4............................................ 60%
4 but less than 5............................................ 80%
5 or more.................................................... 100%
The above notwithstanding, benefit derived from Matching Contributions
shall not be forfeited as a result of the Participant's separation from
employment due to death, disability, termination of the Plan or Change
in Control. In the event of any separation from employment, the Board
may, at its discretion, waive this Section 3.5 and fully vest the
Participant in his/her benefit attributable to Matching Contributions.
A Participant who is an Eligible Consultant shall be 100% vested in the
Matching Contribution allocated to his/her Account upon satisfaction of
the terms of his/her consulting agreement. The Board may, at its
discretion, waive this provision and fully vest such Eligible Consultant
Participant in his/her benefit attributable to Matching Contributions.
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ARTICLE IV
PARTICIPANT ACCOUNTS
4.1 Establishment of Accounts. A separate notational Account shall be
established with respect to each Participant:
4.2 Directed Adjustment of Certain Accounts. A Participant may direct by
written instruction delivered to the Administrator that his/her Accounts
be valued as if they were invested in one or more of the Investment
Funds below. Participants may change their selection of Investment Funds
from time to time in accordance with the procedure prescribed by the
Plan Administrator. Any such change, which must be submitted to the Plan
Administrator in writing, will become effective as soon as
administratively practicable.
The portion of a Participant's Account valued by reference to the
Investment Funds shall be valued daily based upon the performance of the
Investment Fund(s) selected by the Participant. Participant's may select
from among the Investment Funds set forth in Exhibit A. Such valuation
shall reflect the net asset value expressed per share of the designated
Investment Fund(s). The fair market value of an Investment Fund shall be
determined by the Plan Administrator. A valuation summary shall be
prepared no less than quarterly. A Participant shall submit his
investment selection to the Plan Administrator in writing. If any
Participant fails to file a designation he shall be deemed to have
designated the Alliance Money Market fund.
4.3 Election Limitation. The Plan Administrator may establish uniform rules
limiting a Participant's eligibility to allocate contributions to an
Account based on health, income or such other factors the Administrator
deems appropriate.
4.4 Investment Obligation of the Employer. Benefits are payable as they
become due irrespective of any actual investments the Employer may make
to meet its obligations. Neither the Employer nor any trustee (in the
event the Employer elects to use a grantor trust to accumulate funds)
shall be obligated to purchase or maintain any asset, and any reference
to investments or Investment Funds is solely for the purpose of
computing the value of benefits. To the extent a Participant or any
person acquires a right to receive payments from the Employer under this
Plan, such right shall be no greater than the right of any unsecured
creditor of the Employer. Neither this Plan, nor any action taken
pursuant to the terms of this Plan, shall be considered to create a
fiduciary relationship between the Employer and the Plan Participants or
any other persons, or to establish a trust in which the assets are
beyond the claims of any unsecured creditor of the Employer.
Notwithstanding the foregoing, a Participant may not make contributions
to this Plan during any period for which contributions must be suspended
in accordance with regulation section 1.401(k)-1(d)(2)(iii)(B)(3) of the
Code, as a condition of the Participant's receipt of a hardship
withdrawal from any plan of the Employer which includes a qualified cash
or deferred arrangement pursuant to Section 401(k) of the Code.
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ARTICLE V
BENEFITS
5.1 Retirement Benefits.
(a) If a Participant terminates employment, or an Eligible
Consultant ceases to render service to the Employer, for any
reason, including death, the Employer shall pay him/her a
benefit in the form determined under Subsection (b), equal to
the value of the vested balance credited to his/her Account. If
the Participant is deceased, the balance of his/her Account
shall be paid to his/her Beneficiary(ies).
(b) Form of Payment:
(1) If the Participant's termination of employment occurs
due to Retirement, payment of the Retirement Benefit
shall begin within 90 days of Retirement in the form of
monthly installments payable over a fixed period of five
(5), ten (10) or fifteen (15) years as selected by the
Participant pursuant to Subsection (c). The above
notwithstanding, in the case of a Participant who is a
Specified Employee, the Retirement Benefit shall be paid
no earlier than the sixth month following such
Participant's Retirement.
(2) If the Participant's termination of employment occurs
due to Disability, the Retirement Benefit described in
Subsection (a) shall be paid in monthly installments
commencing as of the first day of the first month
following the Participant's termination of employment,
and continuing for a fixed period of five (5), ten (10)
or fifteen (15) years as selected by the Participant
pursuant to Subsection (c).
(3) If the Participant's termination of employment occurs
due for any reason other than Retirement or Disability,
the portion of his/her Account which consists of Exempt
Amounts shall be paid in the form of a single sum within
ninety (90) day of the Participant's attainment of Age
65 unless the Participant elects to change the form and
commencement date of such payment in the manner
described in (c) below. The portion of his/her Account
which consists of 409A Amounts shall be paid in the form
of a single sum within (90) days of the Participant's
separation from service unless such Participant is a
Specified Employee. In such case, the portion which
consists of 409A amounts shall be paid no earlier than
the sixth month following such Participant's separation
from service.
(4) Notwithstanding any provision to the contrary, if the
Participant's Retirement Account has a value that is
less than $10,000 at the time the Retirement Benefit is
to commence, the Participant's Retirement Benefit may,
at the discretion of the Administrator, be paid in the
form of a single
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sum as soon as administratively feasible following the
Participant's termination.
(c) A Participant shall select the form and commencement date in
which Retirement Benefits shall be paid prior to the initial
allocation to his/her Account. Upon mutual agreement between the
Participant and the Administrator, the Participant may change
his/her initial selection of form of distribution provided that
(i) such election is made at least one year prior to the
Participant's Retirement, (ii) such election does not have the
effect of accelerating any such payment; and (iii) if such
election delays the commencement date of any payment, such
delayed commencement date is at least five years after the
original commencement date. The above notwithstanding, with
respect to Exempt Amounts, upon mutual agreement between the
Participant and the Administrator, the Participant may change
his/her initial selection of the form of distribution. With
respect to such Exempt Amounts, any such changes shall not be
limited to the forms specified in Subsection (b) and may include
a single sum.
5.2 Tax Withholding. The Employer shall withhold or cause to be withheld all
appropriate taxes, to the extent that a withholding obligation exists,
with respect to Deferral Contributions and/or benefit payments under
this Plan.
5.3 Loan Offset. Upon termination from employment by a Participant, the
Employer shall deduct any amount then owed by such Participant to the
Employer from such Participant's Account. The Participant shall be
responsible for any taxation resulting from the satisfaction of such
Participant's debt with his/her Plan Account.
5.4 Unforseeable Emergency. A Participant may request a distribution of
his/her Account prior to termination of employment if such distribution
is needed to alleviate an Unforseeable Emergency. The determination of
whether a Participant qualifies for an Unforseeable Emergency
distribution shall be subject to the rules of Code Section 409A and
regulation thereunder.
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ARTICLE VI
ADMINISTRATION
6.1 Appointment of Administrator. The Compensation Committee of the Board
shall serve as Administrator. The Administrator (or any member of the
committee) may be removed by the Employer at any time; and any
individual may resign at any time by submitting his/her resignation in
writing to the Employer. A new Administrator (or committee member) shall
be appointed as soon as practicable in the event of a removal or
resignation. Any person so appointed shall signify his/her acceptance by
filing a written acceptance with the Employer.
6.2 Administrator's Responsibilities. The Administrator is responsible for
the day to day administration of the Plan. The Administrator may appoint
other persons or entities to perform certain of its functions. Such
appointment shall be made and accepted by the appointee in writing and
shall be effective upon the written approval of the Employer. The
Administrator and any such appointee may employ advisors and other
persons necessary or convenient to help him/her carry out his/her
duties. The Administrator shall have the right to remove any such
appointee from his/her position. Any person, group of persons or entity
may serve in more than one capacity.
6.3 Records and Accounts. The Administrator shall keep all individual and
group records relating to Participants and Beneficiaries, and all other
records necessary for the proper operation of the Plan. Such records
shall be made available to the Employer and to each Participant and
Beneficiary for examination during business hours except that a
Participant or Beneficiary shall examine only such records as pertain
exclusively to the examining Participant or Beneficiary and those
records and documents relating to all Participants generally. The
Administrator shall prepare and shall file as required by law or
regulation all reports, forms, documents and other items required by
ERISA, the Code, and every other relevant statute, each as amended, and
all regulations thereunder.
6.4 Administrator's Specific Powers and Duties. In addition to any powers,
rights and duties set forth elsewhere in the Plan, the Administrator
shall have the following powers and duties:
(a) to adopt such rules and regulations consistent with the
provisions of the Plan;
(b) to enforce the Plan in accordance with its terms and any rules
and regulations it establishes;
(c) to maintain records concerning the Plan sufficient to prepare
reports, returns and other information required by the Plan or
by law;
(d) to construe and interpret the Plan and to resolve all questions
arising under the Plan;
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(e) to direct the Employer to pay benefits under the Plan, and to
give such other directions and instructions as may be necessary
for the proper administration of the Plan;
(f) to be responsible for the preparation, filing and disclosure on
behalf of the Plan of such documents and reports as are required
by any applicable federal or state law; and
(g) to engage assistants and professional advisors.
6.5 Delegation. The Administrator may, by written majority decision,
delegate to each or any one of its number, or to its Secretary,
authority to sign any documents on its behalf, or to perform ministerial
acts, but no person to whom such authority is delegated shall perform
any act involving the exercise of any discretion without first obtaining
the concurrence of a majority of the Participants of the committee, even
though he/she alone may sign any document required by third parties.
6.6 Construction of the Plan. The Administrator shall take such steps as are
considered necessary and appropriate to remedy any inequity that results
from incorrect information received or communicated in good faith or as
the consequence of an administrative error. The Administrator shall have
the sole and absolute discretion to interpret the Plan and shall resolve
all questions arising in the administration, interpretation and
application of the Plan. It shall endeavor to act, whether by general
rules or by particular decisions, so as not to discriminate in favor of,
or against, any person and so as to treat all persons in similar
circumstances uniformly. The Administrator shall correct any defect,
reconcile any inconsistency, or supply any omission with respect to this
Plan. All such corrections, reconciliations, interpretations and
completions of Plan provisions shall be final and binding upon the
parties.
6.7 Employer's Responsibility to Administrator. The Employer shall furnish
the Administrator such data and information as it may require. The
records of the Employer shall be determinative of each Participant's
period of employment, termination of employment and the reason therefor,
leave of absence, reemployment, Years of Service, personal data, and
compensation reductions. Participants and their Beneficiaries shall
furnish to the Administrator such evidence, data, or information, and
execute such documents, as the Administrator requests.
6.8 Engagement of Assistants and Advisers; Plan Expenses. The Administrator
shall have the right to hire such professional assistants and
consultants as it, in its sole discretion, deems necessary or advisable,
including, but not limited to:
(a) investment managers and/or advisers;
(b) accountants;
(c) actuaries;
(d) attorneys;
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(e) consultants;
(f) clerical and office personnel; and
(g) medical practitioners.
The expenses incurred in connection with the operation of the Plan
and/or any trust relating to this Plan, including, but not limited to,
the expenses incurred by reason of the engagement of professional
assistants and consultants, shall be expenses of the Plan and shall be
charged in a reasonable manner against amounts credited to each
Participant's Account at the direction of the Administrator. The
Employer shall have the option, but not the obligation, to pay any such
expenses, in whole or in part, and by so doing, to relieve the
Participants' Accounts from the obligation of bearing such expenses.
Payment of any such expenses by the Employer on any occasion shall not
bind the Employer to thereafter pay any similar expenses.
6.9 Liability. Neither the Administrator nor the Employer shall be liable to
any person for any action taken or omitted in connection with the
administration of this Plan unless attributable to its own fraud or
willful misconduct; nor shall the Employer be liable to any person for
such action unless attributable to fraud or willful misconduct on the
part of a director, officer or employee of the Employer.
6.10 Indemnity of Administrator. The Employer shall indemnify the
Administrator or any individual who is a delegate against any and all
claims, loss, damage, expense or liability arising from any action or
failure to act, except when due to gross negligence or willful
misconduct.
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ARTICLE VII
CLAIMS PROCEDURE
7.1 Claim. If a Participant or Beneficiary is denied all or a portion of an
expected Plan benefit for any reason, he/she must file a written
notification of his/her claim with the Administrator. The Administrator
shall notify the Participant or Beneficiary within sixty (60) days of
allowance or denial of the claim. If the Administrator fails to notify
the claimant of his/her decision to grant or deny the claim within sixty
(60) days, such claim shall be deemed to have been denied; and the
review procedure described in Section 7.2 shall become available to the
claimant.
The notice provided by the Administrator under this Section shall be in
writing, sent by mail to the Participant's last known address and, if a
denial, must contain the following information:
(a) the specific reasons for the denial;
(b) the specific reference to the pertinent Plan provision on which
the denial is based;
(c) if applicable, a description of any additional information or
material necessary to perfect the claim, and an explanation of
why such information or material is necessary; and
(d) an explanation of the claims review procedure and the time
limitations of the review procedure applicable thereto.
7.2 Review Procedure. A Participant or Beneficiary is entitled to request a
review of any denial of his/her claim by the Named Appeals Fiduciary.
The request for review must be submitted in writing within sixty (60)
days of mailing of the notice of the denial. Absent a request for review
within the 60-day period, the claim will be deemed to be conclusively
denied. The Participant or Beneficiary or his/her representative shall
be entitled to review all pertinent documents and to submit issues and
comments in writing. The Named Appeals Fiduciary shall provide a full
and fair review of the claim and render the final decision.
7.3 Final Decision. Within sixty (60) days of mailing of a request for
review, the Named Appeals Fiduciary shall allow or deny the claim,
unless special circumstances require an extension (such as for a
hearing); provided, however, that in no event shall the decision be
delayed beyond one hundred twenty (120) days after receipt of the
request for review. The decision shall be communicated in writing to the
Participant or Beneficiary. The decision shall recite the facts and
reasons for denial, with specific reference to the pertinent Plan
provisions.
7.4 Appointment of the Named Appeals Fiduciary. The Named Appeals Fiduciary
shall be the person or persons named as such by the Board, or, if no
such person or persons be named, then the person or persons named by the
Administrator as the Named Appeals
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Fiduciary. The Named Appeals Fiduciary may at any time be removed by the
Board, and any Named Appeals Fiduciary named by the Administrator may be
removed by the Administrator. All such removals may be with or without
cause and shall be effective on the date stated in the notice of
removal.
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ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Plan Amendment. The Plan may be amended in whole or in part by the Board
at any time; provided, that (i) no amendment shall deprive a Participant
or Beneficiary of any benefit to which he/she is entitled under this
Plan with respect to Deferral Contributions or Matching Contributions
made prior to such amendment; and (ii) no amendment shall decrease a
Participant's vested interest in his/her Account. Each amendment shall
be approved by the Board by resolution.
8.2 No Premature Distribution. Subject to Article 8.3, no amendment hereto
shall permit amounts accumulated prior to the amendment to be paid to a
Participant or Beneficiary prior to the time he/she would otherwise be
entitled thereto.
8.3 Termination of the Plan. The Employer reserves the right to terminate
the Plan and/or the Deferral Agreement pertaining to any Participant at
any time prior to the commencement of benefits. Such termination shall
be approved by the Board by resolution; or, in the case of a termination
by an entity which is included in the term Employer, by the board of
directors of such terminating entity. In the event of any such
termination, the Employer shall pay a benefit to the Participant or the
Beneficiary of any deceased Participant, in lieu of other benefits
hereunder, equal to the value of the Participant's Accounts.
Termination, in whole or in part, of the Plan by an entity which is
included in the term Employer shall have no effect on the continued
operation of the Plan with respect to other entities constituting
Employer.
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ARTICLE IX
MISCELLANEOUS
9.1 Supplemental Benefits. The benefits provided for the Participants under
this Plan are in addition to benefits provided by any other plan or
program of the Employer and, except as otherwise expressly provided
herein, the benefits of this Plan shall supplement and shall not
supersede any plan or agreement between the Employer and any Participant
or any provisions contained herein.
9.2 Investment Obligation of the Employer. Benefits are payable as they
become due regardless of any actual investments the Employer may make to
meet its obligations under this Plan. Neither the Employer nor any
trustee (in the event the Employer elects to use a grantor trust to
accumulate funds) shall be obligated to purchase or maintain any asset,
and any reference to investments or Investment Funds is solely for the
purpose of computing the value of Accounts. To the extent a Participant
or any person acquires a right to receive payments from the Employer
under this Plan, such right shall be no greater than the right of any
unsecured creditor of the Employer. Neither this Plan nor any action
taken pursuant to the terms of this Plan shall be considered to create a
fiduciary relationship between the Employer and the Participants or any
other persons, or to establish a trust in which the assets are beyond
the claims of any unsecured creditor of the Employer.
9.3 Governing Law. The Plan shall be governed and construed under the laws
of the Commonwealth of Pennsylvania to the extent not preempted by
Federal law which shall otherwise control. The Employer intends that
this Plan and benefits thereunder qualify for the deferral of Federal
taxation pursuant to Code Section 409A. Any provision inconsistent with
Code Section 409A shall be severed and the balance of this Plan shall
remain in effect.
9.4 No Assignment Permitted. Except as otherwise provided in Section 5, no
Participant, Beneficiary or heir shall have any right to commute, sell,
transfer, encumber, hypothecate, assign or otherwise convey the right to
receive any payment under the terms of this Plan. Any such attempted
assignment shall be considered null and void.
9.5 Binding Terms. The terms of this Plan shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, executors,
administrators and successors.
9.6 Spendthrift Provision. The interest of any Participant or any
beneficiary receiving payments hereunder shall not be subject to
anticipation, nor to voluntary or involuntary alienation, until
distribution is actually made.
9.7 Headings. All headings preceding the text of the several Sections hereof
are inserted solely for reference and shall not constitute a part of
this Plan, nor affect its meaning, construction or effect.
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IN WITNESS WHEREOF, and as evidence of its adoption of this
Plan, the Employer has caused the same to be executed this _____________ day of
______________________, 2005.
ATTEST IMPAX LABORATORIES, INC.
- ---------------------------------- ------------------------------------
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EXHIBIT I
Investment Fund Options
Alliance Money Market
Alliance Inter. Gov't Securities
Alliance Quality Bond
Alliance High Yield
T. Rowe Price Equity Income
EQ/Putnam Growth & Income
Alliance Growth & Income
Alliance Equity Index
Alliance Technology
Mercury Basic Value Equity
Alliance Common Stock
MFS Research
MFS Growth with Income
EQ/Alliance Premier Growth
Capital Guardian Research
Capital Guardian U.S. Equity
Alliance Global
Alliance International
T. Rowe Price Int'l Stock
Morgan Stanley Emerging Mkts. Eq.
EQ/Aggressive Stock
EQ/Evergreen
FI Small/Mid Cap Value
Alliance Small Cap Growth
MFS Emerging Growth Companies
Alliance Conservative Investors
EQ/Putnam Balanced
EQ/Evergreen Foundation
EQ/Balanced
Alliance Growth Investors
Mercury World Strategy
EQ/AXP New Dimensions
EQ/AXP Strategy Aggressive
FI Mid-Cap
EQ/Janus Large-Cap Growth