EXHIBIT 10.3
PLASTIPAK PACKAGING, INC.
AMENDED AND RESTATED SALARY CONTINUATION PLAN
TABLE OF CONTENTS
Page
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Article I - Definitions
1.1 Administrative Committee 1
1.2 Adoption Agreement 1
1.3 Age 2
1.4 Agreement 2
1.5 Beneficiary 2
1.6 Board of Directors 2
1.7 Compensation 2
1.8 Discretion 2
1.9 Early Retirement Date 2
1.10 Effective Date 2
1.11 Eligibility Requirements 2
1.12 Employee 2
1.13 Normal Retirement Date 2
1.14 Participant 2
Article II - Administration
2.1 Appointment, Removal and Resignation
of Administrative Committee Members 3
2.2 Powers of Administrative Committee 3
2.3 Payment of Expenses and Benefits 4
Article III - Benefits
3.1 Payment of Benefits Upon Retirement 4
3.2 Payment of Benefits Upon Death 4
3.3 Payment of Benefits Upon Early Retirement 4
3.4 Limitations and Special Rules 5
Article IV - Covenant Not to Compete
4.1 Covenant Not to Compete 7
Article V - Claims Procedure
5.1 Claims Procedure 8
5.2 Review Procedure 9
Article VI - Miscellaneous Provisions
6.1 Amendment or Termination 9
6.2 Employment Relationship 9
6.3 Taxes 10
6.4 Alienation of Benefits 10
6.5 Construction of Agreement 10
6.6 Number and Gender 10
6.7 Headings 10
6.8 Severability 10
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PLASTIPAK PACKAGING INC.
AMENDED AND RESTATED SALARY CONTINUATION PLAN
THIS AGREEMENT, made this 28th day of June, 1999, effective as
of January 1, 1999, by and between PLASTIPAK PACKAGING INC., a Delaware
corporation (hereinafter referred to as the "Company") and a committee appointed
by the Board of Directors of the Company comprised of William C. Young and
Michael J. Plotzke (hereinafter referred to as the "Administrative Committee").
WITNESSETH:
WHEREAS, the Company previously established a Salary
Continuation Plan No. 1 (effective September, 1985); a Salary
Continuation Plan No. 2 (effective July, 1991); and a Salary
Continuation Plan No. 3 (effective September 1, 1995); and
WHEREAS, pursuant to the provisions thereof, the Company
reserved the right to amend said Agreements, and the Company desires to further
amend the same in certain respects; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the Company restates its Salary Continuation
Plan and it is hereby agreed by and between the Company and the Administrative
Committee as follows:
ARTICLE I
DEFINITIONS
As used in this Salary Continuation Plan, and any amendments
hereto, the following words and phrases shall have the following meanings
respectively, unless the context otherwise clearly requires:
1.1 Administrative Committee. The committee appointed
by the Board of Directors of the Company pursuant to Section 2.1 of
this Agreement.
1.2 Adoption Agreement. The agreement a Participant must
complete and execute in order to become a Participant hereunder following the
Administrative Committee's decision to allow such Employee to participate
hereunder. The Adoption Agreement shall include and specify the Participant's
name, address, date of birth, social security number, date of hire, Beneficiary
designation and the amount of benefit and Eligibility Requirements which must be
attained or satisfied in order for such Participant or his Beneficiary to become
entitled to the benefits stated therein. In addition, the Adoption Agreement
shall be deemed to include any other forms the Administrative Committee shall
require in order for an Employee to become a Participant hereunder.
1.3 Age. The age of a Participant as of his last birthday.
1.4 Agreement. This instrument as it now exists or as it may
from time to time be amended.
1.5 Beneficiary. Any individual, trust, entity, estate or
other person who shall be entitled to receive any benefits which are payable
upon or subsequent to the death of a Participant.
1.6 Board of Directors. The present or any succeeding Board of
Directors of the Company.
1.7 Compensation. A Participant's salary, plus bonuses,
actually paid or accrued by the Company during the calendar year as reflected on
the Participant's W-2 form for federal income tax purposes, excluding amounts
paid or expenses incurred by the Company in connection with any employee welfare
benefit or other fringe benefit, including, without limitation, amounts paid as
a disability benefit or amounts paid from any qualified or non-qualified
retirement program (including this Plan).
1.8 Discretion. The sole, absolute and uncontrolled discretion
of the person entitled to exercise such discretion.
1.9 Early Retirement Date. The date consented to by the
Company for a Participant who has been covered by this Plan at least ten (10)
years after the Effective Date, and who has attained age fifty-nine (59) but not
age sixty-five (65).
1.10 Effective Date. September 1, 1985.
1.11 Eligibility Requirements. The Age, years of service with
the Company and other requirements a Participant must attain or satisfy in order
to be eligible to receive a particular benefit under this Plan, as specified in
his Adoption Agreement. Each Adoption Agreement shall separately state the
Eligibility Requirements for each benefit to which the Participant may become
eligible.
1.12 Employee. Any individual employed by the Company,
including officers, directors and shareholders, but excluding independent
contractors.
1.13 Normal Retirement Date. The date the Participant attains
the later of (a) age sixty-five (65) or (b) the 10th anniversary of the
Participant's commencement of participation under this Plan.
1.14 Participant. Any Employee of the Company who is selected
by the Administrative Committee to become a Participant hereunder and who has
completed and executed an Adoption Agreement.
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ARTICLE II
ADMINISTRATION
2.1 Appointment, Removal and Resignation of Administrative
Committee Members. The Company, acting through its Board of Directors, shall be
empowered to appoint and remove the members of the Administrative Committee from
time to time as it deems necessary for the proper administration of the Plan.
Any individual may serve as a member of the Administrative Committee, and the
Administrative Committee may be comprised of as many individuals as the Board of
Directors shall determine. Any individual appointed to the Administrative
Committee shall signify his acceptance to serve thereon by filing a written
acceptance with the Company. A member of the Administrative Committee may resign
by delivering written notice of his resignation to the Company, or may be
removed by the Company by delivery of written notice of removal to take effect
on the date specified therein or upon delivery if no date is specified. The
initial Administrative Committee for this Restated Plan shall be comprised of
William C. Young and Michael J. Plotzke.
2.2 Powers of Administrative Committee.
A. The Administrative Committee shall have the power to select
those Employees of the Company who will be eligible to participate in this
Agreement, determine the benefits to be paid to such Participant or his
Beneficiary and the Eligibility Requirements which such Participant must attain
or satisfy in order to be eligible for such benefits, and shall have the power
to adopt such rules and regulations with respect to the administration of the
Plan and participation in the Plan as the Administrative Committee may determine
to be necessary and/or appropriate. The Administrative Committee shall, also,
have the power to resolve all issues arising in connection with the
administration, interpretation and application of the provisions of this
Agreement and the Participant's Adoption Agreement. The Administrative Committee
shall have the power to create any such Adoption Agreement for any particular
Participant containing the benefits, Eligibility Requirements and other such
provisions thereto as it shall decide with respect to each Employee it selects
for participation hereunder.
B. The Administrative Committee shall have the power to engage
such professional advisors and incur such expenses necessary to the
administration of this Plan as it deems necessary and/or appropriate, except as
limited or restricted by the Board of Directors of the Company.
C. The Administrative Committee shall have the power to
delegate any of its powers to any one or more of its members, and the appointed
individual or individuals shall have all of the powers granted to the
Administrative Committee, except as restricted by the Administrative Committee
in delegating such powers. Except where there has been an allocation or
delegation of
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administrative authority pursuant to the preceding sentence, the Administrative
Committee shall act by a majority of its number, but may authorize one or more
of its members to sign all papers on its behalf.
2.3 Payment of Expenses and Benefits. All expenses of
administration of this Plan shall be paid by the Company out of its general
assets. All benefits payable pursuant to this Plan shall be paid from the
general assets of the Company.
ARTICLE III
BENEFITS
3.1 Payment of Benefits Upon Retirement. As soon as practical
(within approximately 120 days) following the date a Participant satisfies his
Eligibility Requirements, becomes entitled to his retirement benefits pursuant
to his Adoption Agreement and files a claim for benefits, the Company shall
commence payment of the Participant's retirement benefit. The amount of each
Participant's retirement benefit shall be as specified in his Adoption Agreement
and, unless otherwise specified in such Adoption Agreement, shall be payable in
equal monthly installments for the period specified in such Participant's
Adoption Agreement. Unless specified to the contrary in his Adoption Agreement,
the Participant shall be entitled to file a written claim for his retirement
benefit and commence receiving his retirement benefit on satisfaction of the
Eligibility Requirements therefor, as specified in his Adoption Agreement, even
though such Participant continues to be employed by the Company following such
date.
3.2 Payment of Benefits Upon Death.
As soon as practical (within approximately 120 days) following
the death of a Participant while in the employ of the Company, the Company shall
commence payment of a Participant's death benefit to the Beneficiary designated
by such Participant or as provided in the Participant's Adoption Agreement. The
Beneficiary shall furnish the Company with a certified copy of the Participant's
death certificate, or such other documentation as may be reasonably requested by
the Company. Unless specified to the contrary in such Participant's Adoption
Agreement, such benefit shall be paid in equal monthly installments for the
period specified.
Notwithstanding any other provision of this Plan, no benefits
shall be payable hereunder to a Participant's beneficiary if the Participant's
death occurs as a result of a suicide, while sane or insane, within two (2)
years after (i) the date of said Participant's execution of the Adoption
Agreement and/or (ii) the date of any subsequent change in the benefits for said
Participant.
3.3 Payment of Benefits Upon Early Retirement. As soon as
practical (within approximately 120 days) following the date a
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Participant satisfies his Eligibility Requirements, becomes entitled to his
early retirement benefits pursuant to his Adoption Agreement and files a claim
for benefits, the Company shall commence payment of the Participant's early
retirement benefit. The amount of each Participant's early retirement benefit
shall be as specified in his Adoption Agreement and, unless otherwise specified
in such Adoption Agreement, shall be payable in equal monthly installments for
the period specified in such Participant's Adoption Agreement. Unless specified
to the contrary in his Adoption Agreement, the Participant shall be entitled to
file a written claim for his early retirement benefit and commence receiving his
early retirement benefit on satisfaction of the Eligibility Requirements
therefor, as specified in his Adoption Agreement.
3.4 Limitations and Special Rules.
A. A Participant shall be entitled to benefits only upon the
complete satisfaction or attainment of all of the Eligibility Requirements with
respect to the particular benefit for which a claim is being made. In no event
shall any benefit or portion thereof be deemed to be earned or vested ratably
over the period of a Participant's employment with the Company. A Participant
whose employment is terminated, at any time, for any reason, prior to the
satisfaction of his Eligibility Requirements with respect to such benefit shall
not be entitled to any part of such benefit.
B. Upon a Participant or Beneficiary becoming entitled to a
particular benefit, the Administrative Committee shall, in its Discretion, have
the right to purchase an annuity policy for the benefit of any Participant or
his Beneficiary, which policy shall provide for monthly installments at least
equal to the monthly installments and for the period such benefit is payable as
provided in such Participant's Adoption Agreement.
C. In the event of the death of a Participant following the
date he satisfies the Eligibility Requirements specified in his Adoption
Agreement with respect to his retirement benefit, whether or not his retirement
benefit has commenced, such Participant's Beneficiary shall receive the entire
or remaining amount of the Participant's retirement benefit in lieu of receiving
any death benefit hereunder.
D. Notwithstanding anything to the contrary in this Plan, or
in any Adoption Agreement, the Company shall only be obligated to pay one (1)
benefit hereunder with respect to any Participant and his Beneficiary, and in no
event shall any Participant or Beneficiary be entitled to more than one (1)
benefit hereunder.
E. In the event of the death of a designated Beneficiary
before he receives all of the benefits payable to him pursuant to this Plan, the
remaining benefits shall be paid to the
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legal representative of such Beneficiary's estate, unless an alternate
Beneficiary was designated by the Participant.
F. Notwithstanding anything to the contrary contained herein,
in the event the insurance company utilized by the Company to fund the death
benefit hereunder rates the Participant as a smoker, the Company shall only be
obligated to provide the Participant with benefits equal to the amount that can
be purchased utilizing the premiums for a standard rating for the Participant
(instead of the Participant's actual rating). If the Participant desires to
obtain the benefits normally provided by the Company, the Participant may pay to
the insurance company the difference between the premium due for the
Participant's actual rating and the premium due for a standard rating.
G. In the event a benefit is payable to a minor or individual
declared incompetent or to an individual incapable of handling the disposition
of his property, the Administrative Committee may, in its Discretion, pay such
benefit to the guardian, legal representative or person having the care or
custody of such minor, incompetent or individual. The Administrative Committee
may require such proof of incompetency, minority or guardianship as it may deem
appropriate prior to the distribution of any benefit. Any such distribution
shall completely discharge the Administrative Committee and the Company, its
officers, directors and shareholders, from all liability with respect to such
benefit.
H. Each Participant may change the Beneficiary designated in
his Adoption Agreement by filing a written notice of change of Beneficiary
designation with the Administrative Committee on such form as the Administrative
Committee may prescribe. A Participant's Beneficiary designation shall be deemed
automatically revoked in the event of the death of the named Beneficiary or, if
the Beneficiary is the Participant's spouse, in the event of dissolution of the
marriage. In the event any such Participant's Compensation constitutes community
property, any Beneficiary designation made by the Participant other than a
designation of such Participant's spouse shall not be effective if any such
Beneficiary is to receive more than fifty (50%) percent of the aggregate
benefits payable hereunder, unless such spouse shall approve such designation in
writing. In the event that no Beneficiary designation shall be in effect at the
time when any benefits payable under this Plan shall become due, the Beneficiary
shall be the spouse of the Participant; or, if no spouse is then living, the
Participant's children and the issue of any deceased child, by right of
representation; or, if none, to the legal representatives of the Participant's
estate.
I. The commencement of, or continuation of, any benefit under
this Plan to any Participant or Beneficiary shall be subject to such Participant
satisfying, and continuing to satisfy, the provisions of Section 4.1 hereof.
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ARTICLE IV
COVENANT NOT TO COMPETE
4.1 Covenant Not to Compete. The Company's obligation to pay
any benefits hereunder shall cease if a Participant, at any time during his
employment with the Company or during the period benefits are paid or payable
hereunder, engages in and/or conducts, within the continental United States
and/or any foreign country in which the Company has substantial business
interests, directly or indirectly, individually or in participation with, or in
the employ of, others (excluding the Company and its successors), as a partner,
employee, shareholder, owner, sole proprietor, trustee, beneficiary, officer,
director, joint venturer, sales representative, advisor, consultant or in any
similar capacity and/or relationship, the following activities:
A. The ownership, management, operation, lease, control of or
participation in any business, venture, activity or endeavor which competes with
the Business (as hereinbelow defined) of the Company or which is engaged in the
same line of Business as the Company.
B. Suffers or permits any such business, venture, activity or
endeavor described or referred to in Subparagraph A above to so compete with the
Business of the Company or engage in the same Business as the Company.
C. Solicits, influences, requests and/or advises, directly or
indirectly, any customer and/or supplier or prospective customer and/or supplier
of the Company to change, withdraw, curtail or cancel their business or any part
thereof with the Company.
D. Solicits, influences, requests and/or advises, directly or
indirectly, any Employee and/or prospective employee to terminate his employment
with, or choose not to become employed by, the Company.
E. Employs, or offers employment to, any Employee or former
Employee of the Company, except in connection with the Business of the Company.
F. Discloses to any individual, firm, corporation or other
entity the name of any customer, supplier or Employee, or prospective customer,
supplier or employee, of the Company, except in connection with the Business of
the Company.
G. Discloses to any individual, firm, corporation or other
entity any confidential, financial or proprietary information, including, but
not limited to, any trade secret, business method or process, customer list or
customer contract, regarding the Business of the Company, except as may be
required by his employment with the Company.
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For purposes of this Agreement, the "Business" of the Company
shall be defined as the past, present and future business or businesses of the
Company, even if such future business is unrelated to the current business of
the Company. The current business being, generally, described as: The design,
manufacture and marketing of blow-molded, polyethylene terephthalate ("PET") and
high density polyethylene ("HDPE") containers and recycled PET and HDPE
containers.
Specifically, Plastipak segments its plastic containers into the following six
product categories:
1. Carbonated Beverages;
2. Consumer Cleaning Products;
3. Food Products;
4. Dairy, Juice, Bottled Water and Non-Carbonated Beverages;
5. Industrial, Automotive and Agricultural Products; and
6. Health, Personal Care and Distilled Spirits.
ARTICLE V
CLAIMS PROCEDURE
5.1 Claims Procedure. If a Participant or Beneficiary is denied all or
a portion of an expected benefit under this Plan for any reason, he may file a
written claim with the Administrative Committee. The Administrative Committee
shall notify the Participant or Beneficiary within ten (10) days of receipt of
such written claim of the allowance or denial of the claim, unless the
Participant or Beneficiary receives written notice from the Administrative
Committee prior to end of the ten (10) day period stating that special
circumstances require an extension of time for decision, in which case the
period may be extended for not more than thirty (30) additional days. The notice
of the Administrative Committee's decision shall be in writing, sent by mail to
the Participant's or Beneficiary's last known address, and, if a denial of the
claim, shall contain the following information:
A. The specific reasons for the denial.
B. Specific reference to the pertinent provisions of this
Agreement or the Adoption Agreement on which the denial is based.
C. If applicable, a description of any additional information
or material necessary to perfect the claim, an explanation of why such
information or material is necessary and an explanation of the claim review
procedure.
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5.2 Review Procedure.
A. A Participant or Beneficiary is entitled to request a
review of any denial of his claim by the Administrative Committee. A request for
a review must be received by the Administrative Committee in writing within
sixty (60) days of mailing of notice of the denial. Absent a request for review
within the sixty (60) day period, the claim shall be deemed to be conclusively
denied. The Participant or Beneficiary shall be entitled to review all pertinent
documents, and to submit issues or comments orally or in writing.
B. If the request for review by a Participant or Beneficiary
concerns the interpretation and application of the provisions of this Agreement
or the Adoption Agreement and the Company's obligations thereunder, then the
review shall be conducted by a committee consisting of three (3) individuals
designated or appointed by the Administrative Committee, which individuals may
be members of the Administrative Committee. The committee shall afford the
Participant or Beneficiary a hearing and the opportunity to review all the
pertinent documents and submit issues and comments orally or in writing and
shall render a review decision in writing, all within sixty (60) days after
receipt of a written request for review; provided, however, in special
circumstances (such as the necessity of holding a hearing) the committee may
extend the time for decision by not more than sixty (60) additional days upon
written notice to the Participant or Beneficiary. The Participant or Beneficiary
shall receive written notice of the committee's review decision, together with
specific reasons for the decision and reference to the pertinent provisions of
this Agreement or his Adoption Agreement, as soon as such decision is rendered.
In no event shall any failure by the Administrative Committee to render a
decision within the time periods set forth hereinabove be deemed to constitute a
decision in favor of or against the Participant or Beneficiary.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Amendment or Termination. The Company shall have the
right, at any time, to amend or terminate this Plan, including any Adoption
Agreement; provided, however, any Participant who has completely satisfied his
Eligibility Requirements with respect to any benefit prior to such amendment or
termination shall not have his benefits reduced or curtailed by any such
amendment or termination.
6.2 Employment Relationship. Neither the establishment of this
Plan nor any provision of this Agreement or the Adoption Agreement, or
modification thereof, shall be construed as granting any Employee the right to
be retained in the employ of the Company, and all Employees shall remain subject
to control and discharge to the same extent as heretofore. Nothing in this
Agreement, or any Adoption Agreement, shall be construed as an implied or
written
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agreement that any Employee will not be terminated except for cause, and all
Employees shall remain subject to termination at the will of the Company, unless
specifically stated to the contrary in a written employment agreement between
the Company and the Employee.
6.3 Taxes. The Company shall be authorized to deduct from any
payments to be made hereunder all applicable federal, state or local taxes
required by law to be withheld from such payments, and such Participant's or
Beneficiary's benefits shall be so reduced thereby.
6.4 Alienation of Benefits. No benefit which may be payable
pursuant to this Plan to any Participant or Beneficiary shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge; and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge the same shall be void. No such benefit shall
in any manner be liable for, or subject to, the debts, contracts, liabilities,
engagements or torts of any Participant or Beneficiary; nor shall it be subject
to attachment or legal process for or against any Participant or Beneficiary,
and the same shall not be recognized by the Administrative Committee or the
Company, except to such extent as may be required by law.
6.5 Construction of Agreement. This Agreement and each
Adoption Agreement shall be construed according to the laws of the State of
Michigan, and all provisions hereof and thereof shall be administered according
to the laws of such State.
6.6 Number and Gender. Wherever any words are used in this
Agreement or any Adoption Agreement in the singular form they shall be construed
as though they were also used in the plural form in all cases where they would
so apply and wherever any words are used herein in the masculine gender shall be
construed as though they were also used in the feminine or neuter gender in all
cases where they would so apply.
6.7 Headings. Headings of Articles and Sections of this
Agreement and any Adoption Agreement are inserted for convenience of reference
only and they shall constitute no part of this Agreement or the Adoption
Agreement, and shall not be considered in the construction hereof or thereof.
6.8 Severability. If any provision, sentence or clause of this
Agreement or any Adoption Agreement shall be, for any reason, invalid or
unenforceable, the remaining provisions shall nevertheless be valid, enforceable
and carried into effect.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by an authorized individual and the members of the Administrative
Committee have executed this Agreement on the day and year first above written.
COMPANY:
PLASTIPAK PACKAGING, INC.
a Delaware corporation
By: /s/ William C. Young
------------------------
William C. Young
Its: President
ADMINISTRATIVE COMMITTEE:
By: /s/ William C. Young
------------------------
William C. Young
/s/ Michael J. Plotzke
---------------------------
Michael J. Plotzke
STATE OF MICHIGAN )
) SS.
COUNTY OF WAYNE )
On this 28th day of June, 1999, before me personally appeared
William C. Young, who being by me duly sworn did say that he is the President of
Plastipak Packaging, Inc., a Delaware corporation, and that he executed this
Agreement on behalf of said Corporation by authority of its Board of Directors
and acknowledged said Restated Agreement to be the free act and deed of said
Corporation.
/s/ Leora Dallas Lundgren
-------------------------
Notary Public
STATE OF MICHIGAN )
) SS.
COUNTY OF WAYNE )
On this 28th day of June, 1999, before me personally appeared
William C. Young and Michael J. Plotzke, to me known to be the persons described
in and who executed the foregoing Restated Agreement and respectively
acknowledged the execution thereof to be their free act and deed.
/s/ Leora Dallas Lundgren
-------------------------
Notary Public
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