BRIGGS & STRATTON CORPORATION
FORM 10-Q for Quarterly Period Ended March 31, 2002
Exhibit No. 10.1
AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
Effective January 1, 2000
BRIGGS & STRATTON CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated Effective as of January 1, 2000
TABLE OF CONTENTS
Page
PREAMBLE ...........................................................................................1
ARTICLE I GENERAL....................................................................................2
1.1 Committee.........................................................................2
1.2 Deferred Compensation Plan........................................................2
1.3 Employer..........................................................................2
1.4 Plan..............................................................................2
1.5 Pension Plan......................................................................2
1.6 Service...........................................................................2
ARTICLE II ELIGIBILITY................................................................................3
2.1 Persons Eligible As Participants Under The Plan...................................3
ARTICLE III RETIREMENT BENEFITS........................................................................4
3.1 Time of Commencement and Amount...................................................4
3.2 Manner of Payment.................................................................5
3.3 Pre-retirement Spousal Survivor Annuity...........................................5
3.4 Pre-retirement Death Benefit......................................................6
3.5 Interpretation....................................................................7
3.6 Commutation of Benefit............................................................7
3.7 Committee Discretion..............................................................7
ARTICLE IV AMENDMENT AND TERMINATION..................................................................9
4.1 Amendment and Termination.........................................................9
4.2 Acceleration......................................................................9
ARTICLE V ADMINISTRATION............................................................................10
5.1 In General.......................................................................10
5.2 Committee Discretion.............................................................10
5.3 Committee Members' Conflict of Interest..........................................10
5.4 Governing Law....................................................................10
5.5 Expenses.........................................................................10
5.6 Minor or Incompetent Payees......................................................11
5.7 Withholding......................................................................11
5.8 Indemnification..................................................................11
ARTICLE VI BENEFITS UNFUNDED.........................................................................12
6.1 Unsecured Claim..................................................................12
6.2 Grantor Trust Only...............................................................12
ARTICLE VII NONALIENATION OF BENEFITS.................................................................13
ARTICLE VIII CLAIMS PROCEDURE..........................................................................14
8.1 Claims...........................................................................14
8.2 Timing of Notification of Claim Determination....................................14
8.3 Manner and Content of Notification of Claim Determination........................14
8.4 Appeal Procedure.................................................................14
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TABLE OF CONTENTS
(continued)
Page
8.5 Timing of Notification of Claim Determination on Appeal..........................15
8.6 Manner and Content of Notification of Claim Determination on Appeal..............15
ARTICLE IX MISCELLANEOUS............................................................................16
9.1 No Right to Continued Employment.................................................16
9.2 Impact on Other Plans............................................................16
9.3 Severability.....................................................................16
9.4 Gender and Number................................................................16
9.5 Evidence Conclusive..............................................................16
9.6 Status of Plan Under ERISA.......................................................16
9.7 Name and Address Changes.........................................................16
9.8 Limitations on Provisions........................................................17
9.9 Identity of Payee................................................................17
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PREAMBLE
Briggs & Stratton Corporation hereby amends and restates, effective as
of January 1, 2000, the Supplemental Executive Retirement Plan.
1
ARTICLE I
General
1.1 Committee. The term "Committee" means the Compensation Committee of the
Board of Directors of the Employer. Such Committee shall be the Plan
Administrator of this Plan for purposes of the Employee Retirement Income
Security Act of 1974.
1.2 Deferred Compensation Plan. The term "Deferred Compensation Plan" means
the Briggs & Stratton Corporation Key Employees Savings and Investment Plan and
any and all other deferred compensation agreements between the Participant and
the Employer.
1.3 Employer. The term "Employer" means Briggs & Stratton Corporation.
1.4 Plan. The term "Plan" means the Briggs & Stratton Corporation
Supplemental Executive Retirement Plan as set forth in this document and all
subsequent amendments hereto.
1.5 Pension Plan. The term "Pension Plan" means the Briggs & Stratton
Retirement Plan as amended from time to time.
1.6 Service. The term "Service" has the same meaning as defined in Section
3.02 of Part B of the Pension Plan.
2
ARTICLE II
Eligibility
2.1 Persons Eligible As Participants Under The Plan. Each corporate officer
who is a Participant in the Pension Plan shall be a Participant in this Plan.
The Plan does not cover any person who terminated employment with the Employer
prior to August 15, 1989.
Each Participant in this Plan who terminates employment with the Employer
on or after August 15, 1989 shall receive benefits based upon the provisions of
this Plan as in effect at the time of such Participant's termination of
employment.
3
ARTICLE III
Retirement Benefits
3.1 Time of Commencement and Amount.
(a) Normal or Late Retirement. In the case of a Participant who
terminates employment with the Employer on or after his 65th birthday, his
pension benefit hereunder shall commence on the first day of the month next
following the date of his termination of employment.
(b) Early Retirement. In the case of a Participant who terminates
employment with the Employer prior to his 65th birthday but on or after his 55th
birthday and after completing at least 10 but less than 30 years of Service, his
pension benefit hereunder shall commence on either (i) the first day of the
month following the later of (A) the date of his termination of employment or
(B) his 62nd birthday or, if earlier, the date he would have completed 30 years
of Service or (ii) if consented to by the Committee in its discretion, the first
day of any month following the date of his termination of employment.
(c) Special Early Retirement. In the case of a Participant who
terminates employment with the Employer prior to his 65th birthday but after
completing 30 years of Service, his pension benefit hereunder shall commence on
the first day of the month following his termination of employment.
(d) Disability Retirement. In the case of a Participant who terminates
employment with the Employer prior to his 65th birthday but on or after
incurring a Disability as defined in Section 2.03(l) of Part B of the Pension
Plan and after completing 10 years of Service, his pension benefit hereunder
shall commence on the first day of the month following the date of his
termination of employment.
(e) Amount. In the case of Normal, Late, Early, Special Early and
Disability Retirement, the amount of monthly pension payable as a single life
pension shall be (i) the amount of monthly pension which would have been payable
to him under the Pension Plan as a single life monthly pension based on his
retirement on the same date and commencement of his benefits on the same date if
the provisions of Internal Revenue Code Sections 401(a)(17) and 415 did not
exist, if he had made no deferrals under the Deferred Compensation Plan and if
the benefit formula under Part B of the Pension Plan contained a multiplier of
2.1% (rather than 1.6%) minus (ii) the amount of pension, expressed as a single
life monthly pension, actually payable to him under the Pension Plan based on
his retirement on the same date and assuming benefits commence on the same date.
(f) Termination of Employment.
(1) In the case of a Participant who terminates employment with the
Employer prior to his 65th birthday and prior to completing 10 years of Service,
his pension benefit hereunder shall commence on the first day of the month next
following the date he attains age 65.
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(2) In the case of a Participant who terminates employment with the
Employer prior to his 55th birthday after completing at least 10 but less than
30 years of Service, his pension benefit hereunder shall commence (i) on the
first day of the month next following the date he attains age 65 or (ii) if
consented to by the Committee in its discretion, the first day of any month next
following his 55th birthday and prior to his 65th birthday requested by the
Participant.
(3) If benefits become payable under paragraphs (f)(1) or (f)(2),
the amount of such monthly pension payable as a single life pension shall be (i)
the amount of monthly pension which would have been payable to him under the
Pension Plan as a single life monthly pension based on his termination on the
same date and assuming commencement of benefits on the same date if the
provisions of Internal Revenue Code Sections 401(a)(17) and 415 did not exist,
if he had made no deferrals under the Deferred Compensation Plan, if the benefit
formula under Part B of the Pension Plan contained a multiplier of 2.1% (rather
than 1.6%) and if the Pension Plan did not require completion of 5 years of
Service to be eligible for a benefit minus (ii) the amount of pension, expressed
as a single life monthly pension, actually payable to him under the Pension Plan
based on his termination on the same date and assuming benefits under the
Pension Plan commence on the same date (or, in the case of a Participant with
less than 5 years of Service, the amount which would have been payable under the
Pension Plan if it had not required completion of 5 years of Service by the
Participant in order for a pension to be payable).
3.2 Manner of Payment. If the Participant is unmarried at the time his
pension benefit commences, his pension benefit shall be payable to him in the
form of a single life monthly pension. If the Participant is married at the time
his pension benefit commences, instead of receiving a single life monthly
pension he shall receive a Joint and Survivor Pension. The Joint and Survivor
Pension shall be a reduced monthly pension payable to the Participant for his
life with a continuing pension payable after his death to his surviving spouse
for her life in an amount equal to 50% of the reduced benefit payable during the
life of the Participant. Such Joint and Survivor Pension shall be the actuarial
equivalent of the single life monthly pension which would be payable to the
Participant if he were unmarried. If so requested by the Participant and
consented to by the Committee in its discretion, the Plan shall pay the benefit
of a Participant for which the Participant is eligible in the form of a single
life monthly pension or in one of the optional forms of benefit payable under
Section 6.05 of Part B of the Pension Plan which is the actuarial equivalent of
the single life monthly pension otherwise payable to the Participant hereunder.
Actuarially equivalent benefits shall be determined under the factors set forth
for determining actuarial equivalency in the Pension Plan.
3.3 Pre-retirement Spousal Survivor Annuity.
(a) If any married Participant (including a terminated Participant) who
has not met the age and service requirements to begin receiving a pension under
Section 3.1(a), (b) or (c) dies before starting to receive payments hereunder,
then his surviving spouse, if any, shall be entitled to a monthly benefit for
life.
(b) Provided that the surviving spouse survives to such commencement
date, payment of such benefit will commence on (i) the first day of the month
following the
5
Participant's or former Participant's date of death or, if later, 55th
birthday or (ii) in the case of a Participant or former Participant who had not
completed at least 10 years of Service, the first day of the month following the
65th birthday of the Participant or former Participant.
(c) The amount of such monthly benefit for life shall be an amount
equal to (i) what such spouse would have received as a survivor annuity under
the Pension Plan, based on the Participant's Service and the benefit formula in
effect under the Pension Plan on the date of his death or, if earlier, the date
of his termination of employment, if the Participant had survived to and
commenced to receive his pension on the later of his 55th birthday (65th
birthday if the Participant had not completed at least 10 years of Service) or
date of death in the Joint and Survivor Pension form, as described in Section
3.2, and died on the next day if the provisions of Internal Revenue Code
Sections 401(a)(17) and 415 did not exist, if the Participant had made no
deferrals under the Deferred Compensation Plan, if the benefit formula under
Part B of the Pension Plan contained a multiplier of 2.1% (rather than 1.6%) and
if the Pension Plan did not require completion of 5 years of Service for this
benefit to apply minus (ii) the amount of any survivor annuity actually payable
to the spouse under the Pension Plan based on the Participant's death on the
same date and assuming the survivor annuity commenced on the same date (or, in
the case of a Participant with less than 5 years of Service, the amount which
would have been payable under the Pension Plan if it had not required completion
of 5 years of Service by the Participant in order for the survivor annuity to be
payable).
(d) In addition to the payments otherwise due under paragraphs (a), (b)
and (c), if the Participant had completed at least 10 years of Service and dies
prior to what would have been the Participant's 55th birthday, then until the
Participant's 55th birthday the Participant's spouse shall be entitled to
receive a monthly amount of benefit which shall be computed as described under
paragraph (c) above as though the Participant's 55th birthday coincided with the
date of the Participant's death and the offset described in clause (ii) of
paragraph (c) above did not exist.
3.4 Pre-retirement Death Benefit.
(a) If any Participant (including any former Participant) who has met
the age and service requirements for a pension under Section 3.1(a), (b) or (c)
dies before starting to receive payments hereunder, then his surviving
beneficiary, if any, shall be entitled to a survivor benefit.
(b) Payment of such benefit will commence on the first day of the month
following the Participant's or former Participant's date of death.
(c) The amount of such survivor benefit shall be an amount equal to (i)
what such beneficiary would have received as a survivor benefit under the
Pension Plan if the Participant had terminated employment on the day before his
death and commenced to receive benefits on that day under whichever of Section
3.1(a), (b) or (c) would have been applicable calculated on the assumption that
the provisions of Internal Revenue Code Sections 401(a)(17) and 415 did not
exist, the Participant had made no deferrals under the Deferred Compensation
Plan and the benefit formula under Part B of the Pension Plan contained a
multiplier of 2.1% (rather than 1.6%) minus (ii) the amount of survivor benefit
actually payable to the beneficiary
6
under the Pension Plan based on the Participant's death on the same
date and assuming the survivor benefit commenced on the same date.
(d) The beneficiary shall be the same beneficiary as designated by the
Participant for purposes of Section 6.03 of Part B of the Pension Plan (or, in
the case of death after termination of employment, the beneficiary in effect
under Section 6.04 of Part B of the Pension Plan) and the form of payment shall
be the same form as in effect under Section 6.03 of Part B of the Pension Plan
(or, in the case of death after termination of employment, the same form as in
effect under Section 6.04 of Part B of the Pension Plan).
3.5 Interpretation.
(a) With the exception of the fact that this Plan pays a benefit to an
individual who terminates employment or dies prior to completion of 5 years of
Service, it is the intention of the Employer that the benefits provided to the
Participant and any beneficiary under this Plan and the Pension Plan together
shall be no greater than would have been provided to the Participant and any
beneficiary under the terms of the Pension Plan if the Participant had at all
times been covered under the Pension Plan in accordance with its rules had the
limitations of Internal Revenue Code Sections 415 and 401(a)(17) not existed and
if the Participant had made no deferrals under the Deferred Compensation Plan
(and if the formula in effect under Part B of the Pension Plan contained a
multiplier of 2.1% rather than 1.6%). In the event that an individual's pension
is increased under the Pension Plan after such individual commences to receive
benefits hereunder, such increase shall be taken into account and shall reduce
the remaining payments due the individual hereunder or, if the individual has
received payment from this Plan in a lump sum, such individual shall be
obligated to make monthly payments to the Employer equal to the monthly amounts
by which the individual's payments from the Pension Plan have increased.
(b) In computing the benefits which would be payable under this Plan in
the absence of the offset for benefits payable under the Pension Plan, Schedule
A of Part B of the Pension Plan and the first sentence of the last paragraph of
Section 2.03(j) of Part B of the Pension Plan shall be ignored. However, in
computing the amount of offset for amounts payable under the Pension Plan all
amounts payable under the Pension Plan shall be taken into account including
amounts payable under the Pension Plan as a result of Schedule A of Part B of
the Pension Plan and the first sentence of the last paragraph of Section 2.03(j)
of Part B of the Pension Plan.
3.6 Commutation of Benefit. The Committee, in its discretion, may determine
to commute the benefits otherwise payable to a Participant or beneficiary
hereunder, i.e., the Committee may direct that in lieu of the benefit otherwise
payable to a Participant or a beneficiary hereunder, the Plan shall pay such
individual a single lump sum cash payment which is the actuarial equivalent of
the benefit otherwise payable. Actuarial equivalency shall be determined under
the factors set forth in the Pension Plan.
3.7 Committee Discretion. As to the exercise of its discretion under this
Plan, the Committee shall in no way be bound by past precedent in connection
with other Participants, i.e., the fact that it may have directed an earlier
payment commencement date or an alternative form
7
of payment for one Participant shall not in any way obligate the Committee to
reach a similar decision for any subsequent Participant. Any Committee member
who is also a Participant in this Plan shall not be authorized to vote or
otherwise participate in the decision regarding the time or form of payment of
that individual's benefit.
8
ARTICLE IV
Amendment and Termination
4.1 Amendment and Termination. Briggs & Stratton Corporation may amend or
terminate this Plan at any time through action of its Board of Directors. If the
Plan is terminated no further benefits shall accrue hereunder. However, unless
necessary to conform to any present or future federal or state law or
regulation, amendment or termination may not result in a reduction of benefits
of a Participant (or his surviving spouse) who is already receiving benefits,
nor may amendment or termination result in a Participant who is still in active
service (or his surviving spouse) receiving a benefit hereunder smaller than
that to which he would have been entitled had the Participant terminated
employment on the day prior to the effective date of such amendment or
termination. The delegation of authority to the Committee in Section 1.1 and
Article V does not extend to this Section 4.1.
4.2 Acceleration. The Committee may direct payment of a Participant's
benefits in an actuarially equivalent lump sum before they otherwise would be
payable hereunder at any time after the Plan is terminated or if, based on
notification from the Internal Revenue Service or a review by the Committee in
light of Internal Revenue Service guidance, the Committee determines that a
Participant has or will recognize income for federal income tax purposes with
respect to amounts that are or will be payable under the Plan before they are to
be paid. Further, the Committee may direct payment of a Participant's benefits
in an actuarially equivalent lump sum before they otherwise would be payable and
may terminate a Participant's participation in the Plan if, based on
notification from the Department of Labor or a review by the Committee in light
of Department of Labor guidance, the Committee determines that an individual's
participation in the Plan jeopardizes the Plan's status as a plan described in
Section 9.6 hereof.
9
ARTICLE V
Administration
5.1 In General. The Committee has such powers as may be necessary to direct
the general administration of the Plan, including the powers given to it
elsewhere in this document and including (but not by way of limitation) the
following powers:
(a) to construe and interpret the Plan and to make
equitable adjustments for any mistakes or errors made
in the administration thereof;
(b) to prescribe such procedures, rules and regulations
as it shall deem necessary or proper for the
efficient administration of the Plan or any of its
duties hereunder;
(c) to decide questions of eligibility and determine the
amount, manner and time of payment of any benefits
and to direct the payment of the same by the
Employer;
(d) to prescribe the form and manner of application for
any benefits hereunder and forms to be used in the
general administration hereof; and
(e) to receive from the Employer and Participants or
their beneficiaries such information as shall be
necessary for the proper administration of the Plan.
5.2 Committee Discretion. The Committee has full and complete discretionary
authority to determine eligibility for benefits, to construe the terms of the
Plan and to decide any matter presented through the claims review procedure. Any
final determination by the Committee shall be binding on all parties and
afforded the maximum deference allowed by law. If challenged in court, such
determination shall not be subject to de novo review and shall not be overturned
unless proven to be arbitrary and capricious upon the evidence considered by the
Committee at the time of such determination.
5.3 Committee Members' Conflict of Interest. A member of the Committee who
is covered hereunder may not vote or decide upon any matter relating solely to
himself or vote in any case in which his individual right to any benefit under
the Plan is particularly involved nor may a member of the Board who is covered
hereunder vote to amend the Plan regarding the timing of distributions or vote
with respect to direct or indirect termination of the Plan. Decisions shall be
made by remaining Committee or Board members even if there is no quorum under
normal Committee or Board rules.
5.4 Governing Law. This Plan shall be construed in accordance with the laws
of the State of Wisconsin to the extent not preempted by the provisions of the
Employee Retirement Income Security Act of 1974 or other federal law.
5.5 Expenses. All expenses and costs incurred in connection with the
administration and operation of the Plan shall be borne by the Employer and/or
the Trust.
10
5.6 Minor or Incompetent Payees. If a person to whom a benefit is payable
is a minor or is otherwise incompetent by reason of a physical or mental
disability, the Committee may cause the payments due to such person to be made
to another person for the first person's benefit without any responsibility to
see to the application of such payment. Such payments shall operate as a
complete discharge of the obligations to such person under the Plan.
5.7 Withholding. To the extent required by law, the Employer shall withhold
any taxes required to be withheld by the federal or any state or local
government from payments made hereunder or from other amounts paid to the
Participant by the Employer. To the extent that FICA taxes are required to be
withheld from the Participant with respect to amounts credited under this Plan
and no amounts are to be paid to the Participant hereunder or otherwise from the
Employer from which such FICA taxes may be withheld, then the Employer shall pay
such FICA taxes and the Participant's benefit hereunder shall be reduced by the
amount of the FICA tax paid.
5.8 Indemnification. Except as otherwise provided by law, neither the Board
or the Committee nor any individual member of the Board or the Committee, nor
the Employer, nor any officer, shareholder or employee of the Employer shall be
liable for any error of judgment, action or failure to act hereunder or for any
good faith exercise of discretion, excepting only liability for gross negligence
or willful misconduct. Such individuals and entities shall be indemnified and
held harmless by the Employer against any and all claims, damages, liabilities,
costs and expenses (including attorneys' fees) arising by reason of any good
faith error of omission or commission with respect to any responsibility, duty
or action hereunder. Nothing herein contained shall preclude the Employer from
purchasing insurance to cover potential liability of one or more persons who
serve in an administrative capacity with respect to the Plan.
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ARTICLE VI
Benefits Unfunded
6.1 Unsecured Claim. The right of any individual to receive payment under
the provisions of this Plan shall be an unsecured claim against the general
assets of the Employer, and no provisions contained in this Plan, nor any action
taken pursuant to this Plan, shall be construed to give any individual at any
time a security interest in any asset of the Employer, of any affiliated
company, or of the stockholders of the Employer. The liabilities of the Employer
to any individual pursuant to this Plan shall be those of a debtor pursuant to
such contractual obligations as are created by this Plan and to the extent any
person acquires a right to receive payment from the Employer under this Plan,
such right shall be no greater than the right of any unsecured general creditor
of the Employer.
6.2 Grantor Trust Only. Benefits under this Plan are payable solely from
the general assets of the Employer. The rights of Participants and beneficiaries
hereunder shall not constitute or be treated as a trust fund of any kind. Title
to and beneficial ownership of any assets which the Employer may earmark to pay
deferred compensation hereunder shall at all times remain in the Employer and
Participants and beneficiaries hereunder shall have no interest in any specific
assets of the Employer by virtue of this Plan. Notwithstanding the foregoing,
the Employer intends to finance its obligation hereunder via the Trust Agreement
dated January 31, 1995 between the Employer and Johnson Heritage Trust Company
(the "Trust"), which is intended to be a grantor trust, in the event of a Change
of Control Event as defined in such Trust. It is the intention of all parties
involved that the arrangements be unfunded for tax purposes and for purposes of
Title I of ERISA. The Trust and any assets held by the Trust to assist it in
meeting its obligations under the Plan are intended to conform to the terms of
the model trust requirements set forth in Revenue Procedure 92-64 issued by the
Internal Revenue Service.
12
ARTICLE VII
Nonalienation of Benefits
All benefits payable hereunder are for the sole use and benefit of the
Participants and their beneficiaries and, to the extent permitted by law, shall
be free, clear and discharged of and from, and are not to be in any way liable
for, debts, contracts or agreements, now contracted or which may hereafter be
contracted and from all claims and liabilities now or hereafter incurred by any
Participant or beneficiary covered by this Plan. No Participant or beneficiary
covered by this Plan shall have the right to anticipate, surrender, encumber,
alienate or assign, whether voluntarily or involuntarily, any of the benefits to
become due hereunder unto any person or person upon any terms whatsoever, and
any attempt to do so shall be void.
13
ARTICLE VIII
Claims Procedure
8.1 Claims. If the Participant or the Participant's beneficiary
(hereinafter refereed to as "claimant") believes he is being denied any benefit
to which he is entitled under this Plan for any reason, he may file a written
claim with the member of the Committee designated as the claims administrator.
The claimant may designate an authorized representative to act on his behalf in
connection with his claim.
8.2 Timing of Notification of Claim Determination. The claims administrator
shall review the claim and notify the claimant of its decision with respect to
his claim within a reasonable period of time, but not later than 90 days after
receipt of the claim by the claims administrator, unless the claims
administrator determines that special circumstances require an extension of time
for processing the claim. If the claims administrator determines that an
extension of time for processing is required, written notice of the extension
will be furnished to the claimant prior to the termination of the initial 90-day
period. In no event will the extension exceed a period of 90 days from the end
of the initial 90-day period. The extension notice will indicate the special
circumstances requiring an extension of time and the date by which the claims
administrator expects to render the claim determination.
8.3 Manner and Content of Notification of Claim Determination. The claims
administrator will provide the claimant with written or electronic notification
of any adverse claim determination. The notification will set forth:
(a) The specific reason or reasons for the adverse
determination;
(b) Reference to the specific plan provisions on which
the determination is based;
(c) A description of any additional material or
information necessary for the claimant to perfect the
claim and an explanation of why such material or
information is necessary; and
(d) A description of the plan's claim appeal procedures
and the time limits applicable to such procedures,
including a statement of the claimant's right to
bring a civil action under Section 502(a) of the
Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") following an adverse claim
determination on appeal.
8.4 Appeal Procedure. A claimant is entitled to request the entire
Committee to review any denial by written request to the Committee within 60
days of receipt of the denial. Absent a request for review within the 60-day
period, the claim will be deemed to be conclusively denied. In connection with
the claimant's appeal the claimant may submit written comments, documents,
records and other information relating to the claimant's claim. Upon request the
claimant will be provided, free of charge, reasonable access to, and copies of,
all documents, records and other information relevant to the claimant's claim
for benefits. The Committee's decision regarding the claimant's appeal will take
into account all comments, documents, records and other information the claimant
submits relating to the claimant's claim,
14
without regard to whether such information was submitted or considered in
the initial claim determination.
8.5 Timing of Notification of Claim Determination on Appeal. The Committee
will notify the claimant of its determination of the claimant's claim on appeal
within a reasonable period of time, but not later than 60 days after receipt of
the claimant's request for review by the Committee unless the Committee
determines that special circumstances require an extension of time for
processing the claim. If the Committee determines that an extension of time for
processing is required, written notice of the extension will be furnished to the
claimant prior to the termination of the initial 60-day period. In no event will
the extension exceed a period of 60 days from the end of the initial 60-day
period. The extension notice will indicate the special circumstances requiring
an extension of time and the date by which the Committee expects to render the
determination on review.
8.6 Manner and Content of Notification of Claim Determination on Appeal.
The Committee will provide the claimant with written or electronic notification
of its determination with respect to the claimant's appeal. In the case of an
adverse claim determination on appeal, the notification will set forth:
(a) The specific reason or reasons for the adverse
determination;
(b) Reference to the specific plan provisions on which
the determination is based;
(c) A statement that the claimant is entitled to receive,
upon request and free of charge, reasonable access
to, and copies of, all documents, records, and other
information relevant to the claimant's claim for
benefits.
(d) A statement of the claimant's right to bring an
action under section 502(a) of ERISA.
15
ARTICLE IX
Miscellaneous
9.1 No Right to Continued Employment. Neither participation in this Plan,
nor the payment of any benefit hereunder, shall be construed as giving to the
Participant any right to be retained in the service of the Employer, or limiting
in any way the right of the Employer to terminate the Participant's employment
at any time. Nor does the participation in this Plan guarantee the Participant
the right to receive any specific amount of compensation or bonus, such amount
being determined solely under such applicable compensation or bonus arrangement
as established by the Employer.
9.2 Impact on Other Plans. No amounts credited to any Participant under
this Plan and no amounts paid from this Plan will be taken into account as
"wages", "salary", "base pay" or any other type of compensation when determining
the amount of any payment or allocation, or for any other purpose, under any
other qualified or nonqualified pension or profit sharing plan of the Employer
or other plan or program of the Employer, except as otherwise may be
specifically provided by such plan or program.
9.3 Severability. If any provisions of the Plan shall be held illegal or
invalid for any reason, said illegality or invalidity shall not affect the
remaining parts of the Plan, but this Plan shall be construed and enforced as if
said illegal and invalid provisions had never been included herein.
9.4 Gender and Number. Masculine gender shall include the feminine, and the
singular shall include the plural, unless the context clearly indicates
otherwise.
9.5 Evidence Conclusive. The Employer, the Committee and any person or
persons involved in the administration of the Plan shall be entitled to rely
upon any certification, statement, or representation made or evidence furnished
by any person with respect to any facts required to be determined under any of
the provisions of the Plan, and shall not be liable on account of the payment of
any monies or the doing of any act or failure to act in reliance thereon. Any
such certification, statement, representation, or evidence, upon being duly made
or furnished, shall be conclusively binding upon the person furnishing it but
not upon the Employer, the Committee or any other person involved in the
administration of the Plan. Nothing herein contained shall be construed to
prevent any such parties from contesting any such certification, statement,
representation, or evidence or to relieve any person from the duty of submitting
satisfactory proof of any fact.
9.6 Status of Plan Under ERISA. The Plan is intended to be an unfunded plan
maintained by an Employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
as described in Section 201(2), Section 301(a)(3), Section 401(a)(1) and Section
4021(b)(6) of the Employee Retirement Income Security Act of 1974, as amended.
9.7 Name and Address Changes. Each Participant shall keep his name and
address on file with the Employer and shall promptly notify the Employer of any
changes in his name or address. All notices required or contemplated by this
Plan shall be deemed to have been given to
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a Participant if mailed with adequate postage prepaid thereon addressed to
him at his last address on file with the Employer. If any check in payment of a
benefit hereunder (which was mailed to the last address of the payee as shown on
the Employer's records) is returned unclaimed, further payments shall be
discontinued unless evidence is furnished that the recipient is still alive.
9.8 Limitations on Provisions. The provisions of the Plan and any benefits
payable hereunder shall be limited as described herein. Any benefit payable
under the Pension Plan shall be paid solely in accordance with the terms and
provisions of the Pension Plan, and nothing in the Plan shall operate or be
construed in any way to modify, amend, or affect the terms and provisions of the
Pension Plan.
9.9 Identity of Payee. If at any time any doubt exists as to the identity
of any person entitled to payment of any benefit hereunder or as to the amount
or time of any such payment, such sum shall be held by the Employer until such
doubt is cured or the Employer may pay such sum into a court of competent
jurisdiction in accordance with any lawful procedure in such case made and
provided.
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