Exhibit 10a(3)
LIMITED SUPPLEMENTAL BENEFITS PLAN
FOR CERTAIN EMPLOYEES OF
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
AND ITS SUBSIDIARIES
Amended Effective February 1, 2006
LIMITED SUPPLEMENTAL BENEFITS PLAN
FOR CERTAIN EMPLOYEES OF
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
AND ITS SUBSIDIARIES
TABLE OF CONTENTS
Page
1. PURPOSE ........................................................... 1
2. DEFINITIONS OF TERMS USED IN THE PLAN ............................. 1
3. DEATH BENEFIT ..................................................... 5
4. RETIREMENT BENEFIT ................................................ 5
5. ADMINISTRATION OF ACCOUNTS ........................................ 8
6. DESIGNATION OF BENEFICIARIES ...................................... 9
7. LIMITATION OF BENEFITS ............................................ 10
8. PLAN DOES NOT CONSTITUTE AN EMPLOYMENT AGREEMENT .................. 10
9. AMENDMENT OR TERMINATION OF THE PLAN .............................. 10
10. WHAT CONSTITUTES NOTICE ........................................... 11
11. ADVANCE DISCLAIMER OF WAIVER ...................................... 11
12. EFFECT OF INVALIDITY OF ANY PART OF THE PLAN ...................... 11
13. PLAN BINDING ON ANY SUCCESSOR ..................................... 11
14. FUNCTION OF THE COMMITTEE ......................................... 11
15. LAW GOVERNING THE PLAN ............................................ 11
16. MISCELLANEOUS ..................................................... 11
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LIMITED SUPPLEMENTAL BENEFITS PLAN
FOR CERTAIN EMPLOYEES OF
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
AND ITS SUBSIDIARIES
PURPOSE. The purpose of this Plan is to assist the Company in attracting
and retaining a stable pool of key managerial talent and to encourage
long-term key employee commitment to the Company by providing selected
employees of the Company with certain limited supplemental death and
retirement benefits as defined herein. The Plan is intended to provide
such benefits to a select group of management or highly compensated
employees within the meaning of ERISA who terminate employment with the
Company and its ERISA Affiliates after becoming eligible for immediately
payable periodic benefits under the Pension Plan or for early or normal
retirement benefits under the Cash Balance Plan.
The Plan was last amended, effective as of December 31, 2005, to conform
the Plan to the requirements of the American Jobs Creation Act of 2004 and
the terms contained herein shall supersede all prior iterations of the
Plan.
2. DEFINITIONS OF TERMS USED IN THE PLAN. As used in the Plan, the following
words and phrases shall have the meanings indicated:
(a) "Account" -- Any account established pursuant to Paragraph 3(b) or
4(f) of the Plan.
(b) "Assets" -- All amounts that have been credited to an Employee's
Account in accordance with Paragraph 3(b), 4(f), or 5(b) of the
Plan.
(c) "Beneficiary" -- The individual(s) and/or entity(ies) designated in
writing by a Participant in the form attached to the Plan as
Schedule A.
(d) "Cash Balance Plan" -- The Cash Balance Pension Plan of Public
Service Enterprise Group Incorporated.
(e) "Change in Control" -- For the purposes of the Plan, a Change in
Control of the Company shall mean the occurrence of any of the
following events:
(i) any "person" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended from time to time
(the "Act")) is or becomes the beneficial owner within the
meaning of Rule 13d-3 under the Act (a "Beneficial Owner"),
directly or indirectly, of the Company's securities of (not
including in the securities beneficially owned by such person
any securities acquired directly from the Company or its
affiliates) representing 25% or more of the combined voting
power of the Company's then
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outstanding securities, excluding any person who becomes such
a Beneficial Owner in connection with a transaction described
in clause (A) of paragraph (iii) below; or
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals
who, on December 15, 1998, constitute the board of directors
of the Company ("Board") and any new director (other than a
director whose initial assumption of office is in connection
with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or
election by the Board or nomination for election by the
Company's stockholders was approved or recommended by a vote
of at least two-thirds (2/3) of the directors then still in
office who either were directors on December 15, 1998 or whose
appointment, election or nomination for election was
previously so approved or recommended; or
(iii) there is consummated a merger or consolidation of the Company
or any direct or indirect wholly owned subsidiary of the
Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity or any parent thereof), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any subsidiary of the Company, at least 75% of the combined
voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding
securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is
consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at
least 75% of the combined voting power of the voting
securities of which are owned by stockholders of the Company
in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
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Notwithstanding the foregoing subparagraphs (i), (ii), (iii)
and (iv), a "Change in Control" shall not be deemed to have
occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which
the record holders of the common stock of the Company
immediately prior to such transaction or series of
transactions continue to have substantially the same
proportionate ownership in an entity which owns all or
substantially all of the assets of the Company immediately
following such transaction or series of transactions.
(f) "Code" -- The Internal Revenue Code of 1986, as amended.
(g) "Committee" -- The Employee Benefits Committee of the Company as
selected by its Board of Directors.
(h) "Company" -- Public Service Enterprise Group Incorporated.
(i) "Compensation" --
(i) For the purposes of calculating the Death Benefit pursuant to
Paragraph 3 of the Plan, as to any Participant, Compensation
shall be equal to the annual rate of salary of the Participant
in effect at the date of death; and
(ii) For the purposes of calculating the Retirement Benefit
pursuant to Paragraph 4 of the Plan, as to any Participant,
Compensation shall be equal to the average of the total
remuneration paid to such Participant for services rendered to
the Company, excluding i) the Company's cost for any public or
private employee benefit plan but including all elective
contributions that are made by the Company on behalf of a
Participant which are not includable in income under Code
Sections 125 or 401(k) and ii) all awards to the Participant
under the Company's Long-Term Incentive Compensation Plan, for
the five years ending at the earlier of such Participant's
date of Retirement or attainment of normal retirement age
under the Pension Plan; provided, however, that for the
purposes of Paragraph 4 of the Plan, Compensation with respect
to any Participant shall not exceed the amount which is 150%
of the average annual base salary of the Participant for the
applicable five-year period.
(j) "ERISA" -- The Employee Retirement Income Security Act of 1974, as
amended.
(k) "ERISA Affiliate" -- any organization which is a member of a
controlled group of corporations (as defined in Code Section 414(b))
which includes the Company; or any trades or businesses (whether or
not incorporated) which are under common control (as defined in Code
Section 414(c), as modified by Code Section 415(h)) with the
Company; or a member of an affiliated service group (as defined in
Code Section 414(m)) which includes the Company or any other entity
required
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to be aggregated with the Company as required by regulations
promulgated pursuant to Code Section 414(o).
(l) "Participant" -- Each employee of the Company or an ERISA Affiliate
nominated by the Chief Executive Officer of the Company and
designated by the Company's Employee Benefits Policy Committee. The
Chief Executive Officer of the Company shall nominate such select
and key employees of the Company and its ERISA Affiliates upon such
terms as he shall deem appropriate due to the employee's
responsibilities and opportunity to contribute substantially to the
financial and operating objectives of the Company.
(m) "Pension Plan" -- The Pension Plan of Public Service Enterprise
Group Incorporated.
(n) "Plan" -- The Limited Supplemental Benefits Plan for Certain
Employees of Public Service Enterprise Group Incorporated and its
Subsidiaries, the terms of which are contained herein
(o) "Retirement" -- For the purposes of the Plan, Retirement shall mean
either (i) or (ii), as the case may be:
(i) in the case of a Participant who participates in the Pension
Plan, the Participant shall incur a Retirement for purposes of the
Plan if he or she incurs a termination of service with the Company
and its ERISA Affiliates after having attained the right to receive
an immediately payable periodic benefit under the Pension Plan or
when the sum of Participant's age and service are equal to or exceed
80. In determining whether the Participant has attained the right to
an immediately payable periodic benefit under the Pension Plan, he
or she shall receive additional years of age and service in
accordance with any employment, change in control, or similar
arrangement applicable to the Participant, provided the Participant
incurs a termination of service from the Company and its ERISA
Affiliates during the two-year period commencing upon the date of a
Change in Control.
(ii) in the case of a Participant who participates in the Cash
Balance Plan, the Participant shall incur a Retirement for purposes
of the Plan if he or she incurs a termination of service with the
Company and its ERISA Affiliates after his or her Early Retirement
Date or Normal Retirement Date (as those terms are defined in the
Cash Balance Plan). In determining whether the Participant has
attained his or her Early Retirement Date or Normal Retirement Date,
he or she shall receive additional years of age and service in
accordance with any employment, change in control, or similar
arrangement applicable to the Participant, provided the Participant
incurs a termination of service from the Company and its ERISA
Affiliates during the two-year period commencing upon the date of a
Change in Control.
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Retirement shall not include termination of service with the right
to a deferred pension under the Pension Plan or a deferred
retirement benefit or early commencement of payment of a
participant's Cash Balance Account under the Cash Balance Plan.
(p) "Retirement Plan" -- Any pension plan within the meaning of ERISA,
excluding (i) the Pension Plan, the Cash Balance Plan and all
defined contribution plans maintained by the Company or an ERISA
Affiliate, except insofar as any such defined contribution plan may
provide supplementary benefits to the Pension Plan or the Cash
Balance Plan, (ii) this Plan and (iii) all deferred compensation
plans, tax credit employee stock ownership plans and thrift plans,
and all other profit-sharing plans which are not the principal
retirement benefit of a plan sponsor, maintained by sponsors other
than the Company.
(q) "Voting Stock" -- Outstanding stock of a corporation entitled to
vote in the election of the directors of that corporation.
3. DEATH BENEFIT.
(a) Amount of Benefit -- If a Participant dies while in the active
employment of the Company or an ERISA Affiliate, the Company shall
provide a death benefit to such Participant's Beneficiary in an
amount equal to 150% of the Participant's Compensation, adjusted to
the nearest $1,000, or to the next highest $1,000 if such
Compensation is a multiple of $500 but not of $1,000.
(b) Establishment of Account -- Upon the death of a Participant during
employment with the Company or an ERISA Affiliate, the Company shall
establish an Account for the benefit of such Participant's
Beneficiary. Such Account shall initially be credited with an amount
equal to the benefit provided under Paragraph 3(a) and shall be held
and administered as provided in Paragraph 5 of the Plan.
4. RETIREMENT BENEFIT.
(a) General -- At Retirement, the Company shall provide each Participant
with a retirement benefit calculated as provided in this Paragraph
4.
(b) Determination of Benefit --
(i) Pension Plan Participants:
(A) The Participant's Compensation shall be multiplied by an
amount equal to one one-hundredth of the sum of (x) the number
of the Participant's years of credited service under the
Pension Plan at Retirement (including any additional years of
age and service provided to the Participant in accordance with
any employment, change in control, or similar arrangement
applicable to the Participant so long as the Participant
incurs
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a termination of service from the Company and its ERISA
Affiliates during the two-year period commencing upon the date
of a Change in Control), (y) the number of any additional
years of service credit to which the Participant may be
entitled from the Company under the Mid-Career Supplemental
Retirement Income Plan of Public Service Enterprise Group
Incorporated and its Affiliates or any written arrangement
with the Company or an ERISA Affiliate Company (excluding any
written arrangement between the Company or ERISA Affiliate and
the Participant relating to a Change in Control), and (z) 30;
but, in no event, shall the multiple be greater than 0.75.
(B) The amount determined under subparagraph (A) of this Paragraph
4(b)(i) shall be reduced by the sum of (x) the amount the
Participant would be entitled to at Retirement as an annual
pension benefit under the Pension Plan and any supplemental
retirement plan (other than this Plan) maintained by the
Company or an ERISA Affiliate calculated as a single life
annuity without reduction for any pre-retirement survivor's
option coverage or any reduction for early retirement, (y)
100% of the amount of the unreduced annual Social Security
benefit to which the Participant would be entitled at age 65
(or such other age which may be established by the Social
Security Administration from time to time as the earliest age
at which a Participant may receive an unreduced benefit
thereunder), assuming that the Participant has no earnings
from the date of Retirement to age 65 (or such other
applicable age), or, if greater, any disability benefit under
Social Security to which the Participant may be entitled, and
(z) the aggregate of the annual benefits to which the
Participant is entitled under all Retirement Plans as of the
date the Participant is employed by the Company or an ERISA
Affiliate, the such Social Security Benefits and benefits
under all Retirement Plans to be calculated as single life
annuities without any reductions, under rules, procedures and
equivalents determined by the Committee. To determine the
amounts referred to under (y) and (z) above, the Participant
shall file a declaration of all such amounts with the
Performance and Rewards Department of the Company's
subsidiary, PSEG Services Corporation, in such form as the
Committee may require from time to time. No benefit shall be
paid under the Plan until such a declaration, in satisfactory
form, shall be filed with the Performance and Rewards
Department. If a Participant is granted a disability Social
Security benefit, he shall notify the Performance and Rewards
Department thereof within 30 days thereof, and the
Participant's retirement benefit under this Plan shall be
adjusted accordingly. The Company shall be entitled to rely on
such statements in making payment, and if any such statement
is incorrect or is not furnished, the Company shall be
entitled to reimbursement from the Participant, the
Beneficiary or their legal representatives for any overpayment
and may reduce or suspend future payments to recover any such
overpayment. In the event it is established to the
satisfaction of the Committee, in its sole discretion, that
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any such statement was intentionally false or omitted, the
Participant or Beneficiary shall be entitled to no further
payments under the Plan, and the Company shall be entitled to
recover any payments made hereunder.
(ii) Cash Balance Plan Participants:
(A) The Participant's Compensation shall be multiplied by an
amount equal to one one-hundredth of the sum of (x) the number
of the Participant's years of service under the Pension Plan
with which such Participant would have been credited at
Retirement had the Participant participated in the Pension
Plan from his/her date of hire and including any additional
years of age and service provided to the participant in
accordance with any employment, change in control, or similar
arrangement applicable to the Participant so long as the
Participant incurs a termination of service from the Company
and its ERISA Affiliates during the two-year period commencing
upon the date of a Change in Control, (y) the number of any
additional years of service credit to which the Participant
may be entitled from the Company under the Mid-Career
Supplemental Retirement Income Plan of Public Service
Enterprise Group Incorporated and its Affiliates or any
written arrangement with the Company or an ERISA Affiliate
(excluding any written arrangement between the Company or
ERISA Affiliate relating to a Change in Control) and (z) 30;
but, in no event, shall the multiple be greater than 0.75.
(B) The amount determined under subparagraph (A) of this Paragraph
4(b)(ii) shall be reduced by the sum of (x) the amount the
Participant would be entitled to at Retirement as an annual
pension benefit under the Cash Balance Plan and any
supplemental retirement plan (other than this Plan) maintained
by the Company or an ERISA Affiliate calculated as a single
life annuity payable at the Participant's Normal Retirement
Date (as defined under the Cash Balance Plan), (y) 100% of the
amount of the unreduced annual Social Security benefit to
which the Participant would be entitled at age 65 (or such
other age which may be established by the Social Security
Administration from time to time as the earliest age at which
a Participant may receive an unreduced benefit thereunder),
assuming that the Participant has no earnings from the date of
Retirement to age 65 (or such other applicable age), or, if
greater, any disability benefit under Social Security to which
the Participant may be entitled, and (z) the aggregate of the
annual benefits to which the Participant is entitled under all
Retirement Plans as of the date the Participant is employed by
the Company or an ERISA Affiliate, such Social Security
Benefits and benefits under all Retirement Plans to be
calculated as single life annuities without any reductions,
under rules, procedures and equivalents determined by the
Committee. To determine the amounts referred to under (y) and
(z) above, the Participant shall file a declaration of all
such amounts with the Performance and Rewards Department in
such form as
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the Committee may require from time to time. No benefit shall
be paid under the Plan until such a declaration, in
satisfactory form, shall be filed with the Performance and
Rewards Department. If a Participant is granted a disability
Social Security benefit, he shall notify the Performance and
Rewards Department thereof within 30 days thereof, and the
Participant's retirement benefit under this Plan shall be
adjusted accordingly. The Company shall be entitled to rely on
such statements in making payment, and if any such statement
is incorrect or is not furnished, the Company shall be
entitled to reimbursement from the Participant, the
Beneficiary or their legal representatives for any overpayment
and may reduce or suspend future payments to recover any such
overpayment. In the event it is established to the
satisfaction of the Committee, in its sole discretion, that
any such statement was intentionally false or omitted, the
Participant or Beneficiary shall be entitled to no further
payments under the Plan, and the Company shall be entitled to
recover any payments made hereunder.
(c) Forms of Benefit -- The annual amount determined under paragraph (b)
of this Paragraph 4 shall be paid in the form of a life annuity; either a single
life annuity in monthly installments or a joint and survivor annuity in monthly
installments based upon such annual amount and calculated in accordance with the
form of benefit option selected by the Participant under the Pension Plan or the
Cash Balance Plan, as the case may be; provided, however, that if the
Participant has selected a lump-sum distribution under the Pension Plan or the
Cash Balance Plan, distribution under this Plan shall be made in the form of a
single life annuity.
(d) Commencement of Benefit - The benefit to be paid pursuant to this
Paragraph 4 shall commence at the same time as the Participant's benefit under
the Pension Plan or Cash Balance Plan except that for any Participant who is a
"Key Employee," as defined in the Code, commencement of his/her benefit may not
occur earlier than six months following his/her Retirement.
5. ADMINISTRATION OF ACCOUNTS.
(a) General -- Accounts shall be established under the Plan only
pursuant to Paragraph 3(b) hereof. All Accounts shall be
administered in accordance with the provisions of this Paragraph 5.
(b) Interest on Assets in the Account -- The Assets credited to an
Account shall accrue interest at a market rate of interest as may be
determined from time to time by the Committee.
(c) Timing of the Distribution(s) -- A Beneficiary shall receive the
distribution of the Account in the form of monthly distributions
over a ten-year period commencing in the month following the month
of the Participant's death. The amount of each installment shall be
determined by dividing the then unpaid balance in the Account,
including accrued and unpaid interest, by the number of installments
remaining to be paid.
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(d) Request for Change in Distribution -- A Beneficiary or legal
representative may request a change in the timing, frequency or
amount of payments made from a Account by filing a written request
therefor with the Committee. The Committee may, in its sole
discretion, grant such request only if the Committee determines that
an emergency beyond the control of the Beneficiary or legal
representative exists and which would cause such Beneficiary or
legal representative severe financial hardship if the payment of
such benefits were not approved. Any such distribution for hardship
shall be limited to the amount needed to meet such emergency. The
Committee shall inform the Beneficiary or legal representative of
its decision within sixty (60) days of receipt of the written
request.
6. DESIGNATION OF BENEFICIARIES
(a) General -- To designate an individual(s) and/or entity(ies) to
receive the benefits of the Plan with respect to a Participant, such
Participant must file a written designation in the form of Schedule
A to the Plan with the Committee. Subject to the restrictions of
this Paragraph 6, a Participant may change such designation by
filing a subsequent written designation.
(b) Death Benefit -- By designation on Section 1 of a Schedule A filed
with the Committee, a Participant may name an individual(s) and/or
entity(ies) to receive a death benefit under Paragraph 3 of the Plan
with respect to such Participant. A Participant may change such
designation by filing a subsequent notification in the form of
Schedule A.
(c) Retirement Benefits --
(i) Single Life Annuity. If a Participant's retirement benefit
under the Plan is paid as a single life annuity under
Paragraph 4(c)(i) of the Plan, there shall be no Beneficiary
with respect to such benefit and all retirement benefits shall
cease upon the Participant's death.
(ii) Joint and Survivor Annuity. If a Participant's retirement
benefit under Paragraph 4(c)(ii) of the Plan is paid as joint
and survivor annuity, the post-retirement survivorship shall
be paid to the Participant's spouse. If the Participant's
spouse predeceases the Participant within five years from the
date of Participant's Retirement, the Participant's retirement
benefit hereunder will automatically revert and return to a
single life annuity commencing the first day of the month
following the month in which the spouse died. If, however, the
spouse predeceases the Participant more than five years after
Participant's Retirement, the Participant's reduced retirement
benefit shall continue during his life and no survivor benefit
shall be paid.
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(d) Designation by Last Remaining Beneficiary -- After a Participant's
death, if there is only one remaining Beneficiary with respect to a
death benefit under Paragraph 3 of the Plan, such Beneficiary shall
be entitled to designate in writing to the Committee an individual
to be paid any remainder of such benefit under the Plan at such
Beneficiary's death. If no such further designation is made, such
remainder shall be paid to such Beneficiary's estate. In the event
of such Beneficiary's death, and regardless of whether any such
further designation has been made, the Committee in its sole
discretion may require any such remainder to be paid as a lump sum.
7. LIMITATION OF BENEFITS.
(a) The Plan shall be unfunded with respect to all benefits to be paid
hereunder. In addition, the Company shall not be required to
segregate any amounts credited to any Account, which shall be
established merely as an accounting convenience; title to and
beneficial ownership of any Assets credited to any Account shall at
all times remain in the Company, and no Participant, Beneficiary or
legal representative shall have any interest whatsoever in any
specific assets of the Company.
(b) The payment of any death or survivorship benefit under this Plan
shall be contingent upon such evidence of death as may be required
by the Committee.
(c) If the Company should terminate the Plan pursuant to Paragraph 9
hereof, the Company's obligation to pay any benefits under the Plan
shall likewise terminate; provided, however, that, except as
otherwise provided in said Paragraph 9, the Company may not
terminate the Plan with respect to any Participant subsequent to
that Participant's Retirement or death.
8. PLAN DOES NOT CONSTITUTE AN EMPLOYMENT AGREEMENT. The Plan shall not
constitute a contract for the continued employment of any Participant by
the Company or any ERISA Affiliate. The Company and each ERISA Affiliate
reserves the right to modify a Participant's Compensation at any time and
from time to time as it considers appropriate and to terminate any
Participant's employment for any reason at any time notwithstanding the
Plan.
9. AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors of the
Company may, in its sole discretion, amend, modify or terminate the Plan
at any time, provided, however, that no such amendment, modification or
termination shall deprive any Participant or Beneficiary of a previously
acquired right unless such Participant or his Beneficiary or his legal
representative shall consent to such change. Provided, further, however,
that after a Change in Control, this Plan may not be terminated nor the
benefit calculation reduced with respect to any Participant in the Plan on
the date of such Change in Control unless such Participant or his
Beneficiary or his legal representative shall consent to such change. No
right to a death benefit under the Plan shall accrue until a
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Participant's death and no right to a retirement benefit shall accrue
until a Participant's Retirement.
10. WHAT CONSTITUTES NOTICE. Any notice to a Participant, a Beneficiary or any
legal representative hereunder shall be given in writing, by personal
delivery, overnight express service or by United States mail, postage
prepaid, addressed to such person's last known address. Any notice to the
Company or the Committee hereunder (including the filing of Schedule A)
shall be given by delivering it in person or by overnight express service,
or depositing it in the United States mail, postage prepaid, to the
Secretary of the Employee Benefits Committee, Public Service Enterprise
Group Incorporated, 80 Park Plaza, T10B, P.O. Box 1171, Newark, New
Jersey, 07101.
11. ADVANCE DISCLAIMER OF WAIVER. Failure by the Company or the Committee to
insist upon strict compliance with any of the terms, covenants or
conditions hereof shall not be deemed a waiver of any such term, covenant
or condition, nor shall any waiver or relinquishment of any right or power
hereunder at any one or more times be deemed a waiver or relinquishment of
any such right or power at any other time or times.
12. EFFECT OF INVALIDITY OF ANY PART OF THE PLAN. The invalidity or
unenforceability of any provision hereof shall in no way affect the
validity or enforceability of any other provision of the Plan.
13. PLAN BINDING ON ANY SUCCESSOR. Except as otherwise provided herein, the
Plan shall inure to the benefit of and be binding upon the Company, its
successors and assigns, including but not limited to any corporation which
may acquire all or substantially all of the Company's assets and business
or with or into which the Company may be consolidated or merged.
14. FUNCTION OF THE COMMITTEE. The Plan shall be administered by the Committee
and the Committee shall be the final arbiter of any question that may
arise under the Plan.
15. LAW GOVERNING THE PLAN. Except to the extent federal law applies, the Plan
shall be governed by the laws of the State of New Jersey without giving
effect to principles of conflicts of law. This Plan is specifically
intended to comply with the provisions of the The American Jobs Creation
Act of 2004 (the "AJCA") and Section 409A of the Code and it shall
automatically incorporate all applicable restrictions of the AJCA, the
Code and its related regulations, and the Company will amend the Plan to
the extent necessary to comply with those requirements. The timing under
which a Participant will have a right to receive any payment under this
Plan will be deemed to be automatically modified, and a Participant's
rights under the Plan limited to conform to any requirements under, the
AJCA, the Code and its related regulations.
16. MISCELLANEOUS.
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(a) The masculine pronoun shall mean the feminine wherever appropriate.
(b) The headings are for convenience only. In the event of a conflict
between the headings of a paragraph and its contents, the contents
shall control.
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