EXHIBIT 10.14
GENERAL NUTRITION, INCORPORATED
GNC LIVE WELL LATER NON-QUALIFIED DEFERRED COMPENSATION PLAN
General Nutrition, Incorporated (the "Employer"), hereby adopts the GNC Live
Well Later Non-qualified Deferred Compensation Plan (the "Plan") for the benefit
of a select group of management or highly compensated employees. This Plan is an
unfunded arrangement and is intended to be exempt from the participation,
vesting, funding, and fiduciary requirements set forth in Title I of the
Employee Retirement Income Security Act of 1974, as amended. This Plan is
effective February 1, 2002.
ARTICLE 1
DEFINITIONS
1.1 ACCOUNT. The bookkeeping account established for each Participant as
provided in Section 5.1 hereof.
1.2 ADMINISTRATOR. The Employer shall administer the Plan under the
auspices of the Retirement Committee consisting of the Chief Financial
Officer, the General Counsel, the Vice President of Tax, the Vice
President of Human Resources and the Benefits Director .
1.3 BENEFICIARY. The person, persons, trust or other entity a Participant
designates by written revocable designation filed with the
Administrator to receive payments in event of his or her death.
1.4 BOARD. The Board of Directors of the Employer.
1.5 BONUS. Compensation which is designated as such by the Employer and
which relates to services performed during an incentive period by an
Eligible Employee in addition to his or her Salary, including any
pretax elective deferrals from said Bonus to any Employer sponsored
plan that includes amounts deferred under a Deferral Election or a
qualified cash or deferred arrangement under Code Section 401(K) or
cafeteria plan under Code Section 125.
1.6 CODE. The Internal Revenue Code of 1986, as amended.
1.7 COMPENSATION. The Participant's earned income, including Salary and
Bonus from the Employer.
1.8 DEFERRALS. The portion of Compensation that a Participant elects to
defer in accordance with Section 3.1 hereof.
1.9 DEFERRAL ELECTION. The separate written agreement, submitted to the
Administrator, by which an Eligible Employee agrees to participate in
the Plan and make Deferrals thereto. The Deferral Election will specify
the amount of Compensation that a Participant chooses to defer.
1.10 DISABILITY. Any medically determinable physical or mental disorder that
renders a Participant incapable of continuing in the employment of the
Employer in his or her regular duties of employment, as determined by
the Administrator in its sole discretion.
1.11 EFFECTIVE DATE. February 1, 2002
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1.12 ELIGIBLE EMPLOYEE. Each employee designated by the Administrator
pursuant to Section 2.1 as eligible to participate in the Plan.
1.13 EMPLOYEE. Any person employed by the Employer.
1.14 EMPLOYER. General Nutrition, Incorporated and any directly or
indirectly affiliated subsidiary corporations, any other affiliate
designated by the Board, or any successor to the business thereof;
excluding Nutricia Manufacturing USA Inc, Rexall Sundown, Inc. and its
subsidiaries and Unicity Network, Inc. and its subsidiaries, unless
such affiliates are specifically included by the Board.
1.15 ENROLLMENT PERIOD
a) For individuals who are Eligible Employees prior to the
commencement of a given Plan Year, Enrollment Period means the
period set by the Administrator, which ends prior to the first
day of a Plan Year.
b) With respect to an Eligible Employee designated as such by the
Employer effective as of any day after the first day of a Plan
Year, Enrollment Period means the period beginning with the
date of his/her designation as an Eligible Employee, and
ending prior to the first day such Eligible Employee's
participation in the Plan commences.
1.16 FINANCIAL HARDSHIP Financial Hardship means a severe financial hardship
of the Participant resulting from a disability of the Participant, a
sudden and unexpected illness or accident of the Participant, loss of
the Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstance arising as a result of
events beyond the control of the Participant. Financial Hardship shall
be determined by the Retirement Committee based on such standards as
are, from time to time, established by the Retirement Committee, and
such determination shall be the sole discretion of the Retirement
Committee.
1.17 INVESTMENT INDEX. Each Investment Index, which serves as a means to
measure value, will determine increases or decreases with respect to a
Participant's Accounts. For purposes of this Plan, the Investment Index
will be fixed to separate account unit values of applicable variable
life insurance policy(s) purchased by the Administrator on the
Participant's life.
1.18 MATCHING CONTRIBUTION. An Employer contribution as described in Section
3.2 hereof.
1.19 NORMAL RETIREMENT AGE. Participant's attainment of 65 years of age.
1.20 PARTICIPANT. An Eligible Employee who is a Participant as defined in
Article 2.
1.21 PLAN. GNC Live Well Later Non-qualified Deferred Compensation Plan.
1.22 PLAN YEAR. January 1, through December 31 for each subsequent Plan
Year.
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1.23 RETIREMENT. Retirement means the termination of the Participant's
employment or contract with the Employer for any reason other than
death or Disability upon the occurrence of any one of the following:
(a) at Normal Retirement Age; or
(b) if the Participant has at least ten (10) Years of Service with
the Employer at any time after attaining age 55.
1.24 SALARY. An Eligible Employee's base salary rate or rates in effect at
any time during a Plan Year, including any pretax elective deferrals
from said Salary to any Employer sponsored plan that includes amounts
deferred under a Deferral Election or a qualified cash or deferred
arrangement under Code Section 401(K) or cafeteria plan under Code
Section 125.
1.25 TRUST. The agreement between the Employer and the Trustee under which
the assets of the Plan are held, administered and managed, which shall
conform to the terms of Rev. Proc. 92 - 64.
1.26 TRUSTEE. Sample Employer Trust Department, or such other successor that
shall become trustee pursuant to the terms of the Plan.
1.27 YEARS OF SERVICE. A Participant's "Years of Service" shall be measured
by the total number of full twelve (12) month periods that an
individual has been an Employee.
ARTICLE 2
PARTICIPATION
2.1 DESIGNATION AS ELIGIBLE EMPLOYEE. The Administrator shall from time to
time specify one or more persons from a select group of management or
highly compensated employees as Eligible Employees. Such specification
shall be in writing, with a copy delivered to the Employer and the
person designated as eligible, and shall set the date as of when the
person becomes eligible.
An Eligible Employee who is unable to pass a medical underwriting
examination prior to the purchase of their applicable variable life
insurance policy shall not be eligible for any Death Benefit under this
Plan as provided for in Section 6.4 below. An Eligible Employee, who is
ineligible to receive a Death Benefit under this Plan, shall remain an
Eligible Employee for all other facets of this Plan unless otherwise
provided by the Administrator.
For the initial Plan Year, and for subsequent Plan Years until the
Administrator otherwise directs, an Eligible Employee shall mean each
Employee:
(a) who is designated as such by the Employer; and
(b) is considered within a select group of management or highly
compensated employees.
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An individual's designation as an Eligible Employee may be revoked at
any time upon written notice of the Administrator to such individual.
2.2 COMMENCEMENT OF PARTICIPATION. Each Eligible Employee shall become a
Participant at the earlier of the first day of the Plan Year or the
date on which his or her Deferral Election first becomes effective.
2.3 LOSS OF ELIGIBLE EMPLOYEE STATUS.
(a) A Participant who is no longer an Eligible Employee shall not
be permitted to submit a Deferral Election and all Deferrals
for such Participant shall cease as of the end of the Plan
Year in which such Participant is determined to no longer be
an Eligible Employee.
Amounts credited to the Account of a Participant described in
subsection (a) shall continue to be held, pursuant to the terms of the
Plan and shall be distributed as provided in Article 6.
A Participant who is no longer an Eligible Employee shall continue to
receive quarterly statements, and shall retain the right to make
changes in investment selection according to Section 5.2.
ARTICLE 3
CONTRIBUTIONS
3.1 DEFERRALS.
(a) On an annual basis, each Participant may authorize the
Employer to reduce his/her future Compensation by a percentage
not to exceed an amount allowed for the Plan Year as
established by the Employer, and to have a corresponding
amount credited to his/her Account, in accordance with Article
5, by filing a Deferral Agreement with the Administrator
during his/her initial Enrollment Period or any subsequent
Enrollment Period preceding the Plan Year during which such
Compensation will be earned.
(b) Each Eligible Employee shall deliver an annual Deferral
Election to the Employer before any Deferrals can become
effective. Such Deferral Election shall be void with respect
to any Deferral unless submitted before the beginning of the
Plan Year during which the amount to be deferred will be
earned; provided, however, that in the year in which the Plan
is first adopted or an Employee is first eligible to
participate, such Deferral Election shall be filed within
thirty (30) days of the date on which the Plan is adopted or
the date on which an Employee is first eligible to
participate, respectively, with respect to Compensation earned
during the remainder of the calendar year.
(c) In the event that a Participant submits a Deferral Agreement
to the administrator that in the sole discretion of the
Retirement Committee is incomplete or inaccurate, the
Retirement Committee shall be authorized to assume the
following, and such assumptions shall be communicated to the
Participant:
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i) If no Benefit Allocation is listed - assume
Retirement Account was selected;
ii) If Benefit Allocation listed equals less than 100% -
assume balance is deferred into Retirement Account;
iii) If Benefit Allocation listed equals more the 100% -
assume proportionate reduction to each Benefit
Allocation selected;
iv) If no Portfolio is selected - assume Money Market
fund was selected;
v) If Portfolio selected equals less than 100% - assume
Money Market fund was selected for the balance;
vi) If Portfolio selected equals more than 100% - assume
proportionate reduction in each Portfolio selected;
vii) If no Benefit Distribution is elected - assume lump
sum of In-service Distribution Account and 5 year for
Retirement Account;
viii) If no time payment for In-service Distribution
Account - assume the earliest possible date available
under the provisions of the Plan.
(d) The Deferral Election shall, subject to the limitation set
forth in Section 3.1(a) hereof, designate the amount of
Compensation deferred by each Participant, the Beneficiary or
Beneficiaries of the Participant and such other items as the
Administrator may prescribe. Such Deferral Elections shall
remain effective for the Plan Year.
(e) The minimum amount of Salary that may be deferred each Plan
Year is two hundred dollars ($200.00). Participants may defer
a minimum of two percent (2%) and a maximum of twenty-five
percent (25%) of their Salary in each Plan Year, subject to
the aforementioned minimum deferral amount.
(f) The minimum amount of Bonus that may be deferred each Plan
Year is two thousand dollars ($2000.00). Participants may
defer a minimum of two percent (2%) and a maximum of
twenty-five percent (25%) of their Bonus in each Plan Year,
subject to the aforementioned minimum deferral amount.
3.2 MATCHING CONTRIBUTION. At its sole and absolute discretion, the
Employer may elect to make a Matching Contribution to the Account of
some or all of the Participants. The amount of the Matching
Contribution, if any, shall be determined by the Employer annually and
communicated to all Eligible Employees. Such Matching Contribution
shall be allocated to the Participant's Account in accordance with
Section 5.1.
3.3 TIME OF CONTRIBUTIONS. Deferrals and Matching Contributions shall be
transferred to the Trust as soon as administratively feasible following
the end of each month
3.4 FORM OF CONTRIBUTIONS. All Deferrals and Matching Contributions to the
Trust shall be made in the form of cash or cash equivalents of US
currency.
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ARTICLE 4
VESTING
4.1 VESTING OF DEFERRALS. A Participant shall have a one hundred percent
(100%) vested right to the portion of his or her Account attributable
to Deferrals and any earnings on the investment of such Deferrals.
4.2 VESTING OF MATCHING CONTRIBUTIONS. Participants eligible for the Plan
as of the initial Plan Year shall have a one hundred percent (100%)
vested right to the portions of his or her Account attributable to
Matching Contributions. Participants who become eligible to participate
subsequent to the initial Plan Year will be one hundred percent (100%)
vested right to the portions of his or her Account attributable to
Matching Contributions only after completion of one (1) year of service
with the Employer.
4.3 VESTING IN EVENT OF CHANGE OF CONTROL. Notwithstanding any provision
contained herein to the contrary, in the event that, prior to the time
that the entire amount of the Matching Contributions becomes vested a
Change of Control occurs, then that portion of the Matching
Contributions which has not yet become vested shall immediately become
vested to such Participant or such Participant's Beneficiary or estate,
as the case may be, as of the date of such Change of Control. For
purposes of this Agreement Change of Control means:
a) a sale of all or substantially all of the assets of the
Employer or a Significant Stock Acquisition of the Employer
(as hereinafter defined) which is followed, within an eighteen
month period, by the Employer (or the acquiring or surviving
entity) (A) terminating the Participant's employment with the
Employer (or the acquiring or surviving entity); (B) changing
the Participant's position with the Employer (or the acquiring
or surviving entity) so that the nature and scope of the
Participant's duties or his/her responsibilities with the
Employer (or the acquiring or surviving entity) are reduced to
a level below that which he/she enjoyed immediately prior to
such change; or (C) reducing the Participant's Base Salary; or
b) a sale of all or substantially all of the assets of the
Employer or a Significant Stock Acquisition of the Employer
(as hereinafter defined) which is preceded within a six month
period by the Employer terminating Participant's employment
with the Employer without cause.
c) A Significant Stock Acquisition of the Employer shall have
occurred if more than fifty percent (50%) of the votes
attributed to the Employer's outstanding equity securities
shall be acquired, either directly or indirectly (including
but not limited to, a merger) by any corporation, person or
persons who act in concert as described in Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended.
d) A merger, consolidation or other extraordinary transaction to
which Royal Numico N.V. (Numico) or any affiliate is a party
if the Persons who were stockholders of Numico immediately
prior to the transaction do not continue immediately after the
transaction to be the beneficial owners in substantially the
same proportions of at least a majority of the total combined
voting power for elections of directors of the entity or
entities which immediately
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following the transaction hold at least two-thirds in value of
the consolidated total assets of Numico immediately prior to
the transaction; or
e) Any Person becomes the beneficial owner in the aggregate of
securities of Numico representing 50% or more of the total
combined voting power for election of directors of Numico
unless such Person (or a Person owned directly or indirectly
by such Person) was the beneficial owner, directly or
indirectly, as of the Matching Contribution date applicable to
the affected Participant, of 50% or more of the Numico voting
securities outstanding as of the Matching Contribution date;
or
f) A majority in value of the consolidated assets of Numico are
transferred to any Person or entity that is not an affiliate
of Numico; or
g) the stockholders of Numico approve any plan or proposal for
the liquidation of Numico; or
h) if the Participant is the employee of a subsidiary, Numico
shall cease to hold securities of the subsidiary having at
least a majority of the total combined voting power for the
election of directors of such subsidiary.
4.4 AMOUNTS NOT VESTED. Any amounts credited to a Participant's Account
that are not vested at the time of his or her termination of employment
with the Employer shall be forfeited.
ARTICLE 5
ACCOUNTS
1.1 ACCOUNTS. The Administrator shall establish and maintain a bookkeeping
"Retirement Account" for each Participant. His or her Retirement
Account shall be credited with Deferrals (as specified in the
Participant's Deferral Election), any Matching Contributions allocable
thereto and the Participant's allocable share of any earnings or losses
on the foregoing. Each Participant's Account shall be reduced by any
distributions made plus any federal, state and/or local tax withholding
and any social security withholding tax as may be required by law. Each
Participant shall receive a quarterly statement showing the balances in
the Participant's Account.
1.2 INVESTMENTS, GAINS AND LOSSES.
a) assets shall be invested in accordance with written directions
from the Employer. Such directions shall provide investment
discretion to invest the above-referenced amounts within broad
guidelines established by the Employer as set forth therein.
b) The Administrator shall adjust the amounts credited to each
Participant's Account to reflect Deferrals, Matching
Contributions, investment experience, distributions and any
other appropriate adjustments. Such adjustments shall be made
as frequently as is administratively feasible.
c) A Participant may direct that his or her Retirement Account
established pursuant to Section 5.1 may be valued as if they
were tied to an Investment Index provided by the
Administrator.
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A Participant's Retirement Account will be credited with an
interest rate equal to the increase or loss, if any, of the
appropriate Investment Index. Administrator may provide for
the multiple Participant use of a single Investment Index.
1.3 FORFEITURES. Any forfeitures from a Participant's Account shall
continue to be held in the Trust, and shall be used to reduce the
Employer's future Matching Contributions under the Plan. If no such
further contributions will be made, then such forfeitures shall be
returned to the Employer.
ARTICLE 6
DISTRIBUTIONS
6.1 DISTRIBUTION ELECTION. Each Participant shall designate on his or her
Deferral Election the timing of his or her distribution by indicating
the type of account as described under Section 5.1. A Participant may
not modify, alter, amend or revoke such designation for a Plan Year
after such Plan year begins. Further, amounts in one Account cannot be
transferred to another Account. Each Participant shall also designate
the manner in which Retirement Account payments shall be made from the
choices available under Section 6.2 (a) hereof.
6.2 PAYMENT OPTIONS.
a) Retirement Account payments shall commence as soon as
administratively feasible immediately after the Participant's
Retirement. The Participant may elect any one of the following
forms of payment so long as the election is made in writing,
delivered to the Administrator at least 12 months prior to the
year in which the Participant's benefit becomes payable.
i) A Participant entitled to a benefit hereunder may
elect to receive his/her Retirement Account in
substantially equal annual installments over a period
of five or ten years. In the event Participant fails
to make an election, Section 6.2 (a)(i) shall control
Participant's distribution method.
The amount of the substantially equal payments
described above shall be determined by multiplying
the Participant's Retirement Account by a fraction,
the denominator of which in the first year of payment
equals the number years over which benefits are to be
paid, and the numerator of which is one (1).
The amounts of the payments for each succeeding year
shall be determined by multiplying the Participant's
Retirement Account as of the applicable anniversary
of the Participant's Retirement Date by a fraction,
the denominator of which equals the number of
remaining years over which benefits are to be paid,
and the numerator of which is one (1).
ii) Single lump-sum distribution of the value of the
Participant's Retirement Account as soon as
administratively feasible.
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b) The vested portion of a Participant's In-Service Account shall
be distributed to the Participant upon the date chosen by the
Participant in the first Deferral Agreement which designated a
portion of the Compensation deferred to be allocated to the
In-Service Account but in no event shall the date selected be
earlier than the first day of the month of the sixth calendar
year following the initial filing of the Deferral Agreement
with respect to that In-Service Account. The benefit payment
shall be that form selected by the Participant pursuant to
section XX. However, if the Participant terminates employment
with the Company prior to the date so chosen by the
Participant, the vested portion of the In-Service Account
shall be added to the Retirement Account as of the date of
termination of service and shall be paid in accordance with
Section 6.2. Payment shall commence as soon as practical, but
in no event later than sixty days after the date selected by
the Participant under this Section, and subsequent payments
shall be made on the anniversary date of the initial payment.
6.3 COMMENCEMENT OF PAYMENT UPON DISABILITY OR TERMINATION.
a) Upon the Disability of a Participant, all amounts credited to
his or her Account shall be paid to the Participant, in a
lump-sum payment, as soon as administratively feasible.
b) Upon termination of Participant's employment with the Employer
for reason other than Retirement, death or Disability, all
vested amounts credited to his or her Account shall be
distributed to the Participant upon Participant attaining
Normal Retirement Age in a lump-sum payment, as soon as
administratively feasible.
6.4 HARDSHIP DISTRIBUTIONS Upon a finding that a Participant has suffered a
Financial Hardship or disability, the Retirement Committee may, in its
sole discretion, amend the existing Deferral Agreement, or make
distributions from any of all of the Participant's Accounts. The amount
of such distribution shall be limited to the amount reasonable
necessary to meet the Participant's needs resulting from the Financial
Hardship or disability, an will not exceed the Participant's vested
Account balances. If payment is made due to Financial Hardship, the
Participant's deferrals under this Plan shall cease for the period of
Financial Hardship or disability and for twelve months thereafter. Any
resumption of the Participant's deferrals under the Plan after such
twelve-month period shall be made only at the election of the
Participant in accordance with Article XX herein.
6.5 WITHDRAWAL OF PARTICIPATION The Participant may elect, in the sole
discretion of the Participant, to terminate participation in this Plan,
and to cause the total vested portion of the Participant's Account
balances to be distributed in accordance with Article XX as if the
Participant had terminated services with the Company as of the time of
the election. Such resulting amount shall be paid to the Participant or
the Participant's beneficiary as soon as administratively practical.
The Participant, or the Participant's beneficiary, may file such an
election at any time prior to the complete payment of benefits due
under this Plan. Upon filing of this election, any Deferral Agreement
for the current year shall be terminated and the Participant shall be
prohibited from participating in this Plan at any time in the future.
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6.6 DEATH BENEFIT. If a Participant dies before Retirement and the Plan is
in effect at the that time, his or her Employer will pay or cause to be
paid a Death Benefit to such Participant's Beneficiary, as provided for
below, in a lump sum payment, as soon as administratively possible. The
said Death Benefit shall be the greater of; i) the Participant's
Retirement Account balance at the time of death, or ii) fifteen (15)
times the Participant's first (1st) Deferral amount up to $500,000, as
found in their initial Deferral Election.
Notwithstanding the immediately preceding paragraph of this Section
6.4, the Employer will pay or cause to be paid the Death Benefit
specified therein only if:
a) at the time of the Participant's death prior to attaining his
or her Retirement, Participant was an Employee and had not
taken advantage of Retirement; and
b) the Participant's participation in the Plan, as evidenced by
Participant's in force Deferral Election, has been continuous
from the date of the Deferral Election to the date of
Participant's death; and
c) the Participant's death was due to causes other than suicide
within two (2) years of the date of his or her original
Deferral Election or within two (2) years of the date of any
amendment to Participant's Deferral Election or any subsequent
Deferral Election resulting from an additional Death Benefit
granted; but the Participant's suicide shall relieve the
Employer only of its obligation to pay that portion of the
Death Benefit that was granted within two (2) years prior to
the date of such suicide; and
d) the Participant's death is determined not to be from a bodily
or mental cause or causes, information about which was
withheld, or knowingly concealed, or falsely provided by the
Participant when requested by the Employer to furnish evidence
of good health upon the Participant's enrolling in the Plan or
upon an application for an increase in benefits because of an
increase in Participant's Death Benefit; and
e) If the Death Benefit is not paid as a result of any Section
herein above, Participant's Beneficiary will receive what has
accumulated in Participant's Account representing
Participant's Deferrals.
f) Proof of death in such form as determined acceptable by
Administrator is furnished.
6.7 MINIMUM DISTRIBUTION. Notwithstanding any provision to the contrary, if
the vested balance of a Participant's Account at the time of a
termination due to Retirement is less than $10,000.00, then the
Participant shall be paid his or her benefits as a single lump sum as
soon as administratively feasible following said termination.
6.8 WITHHOLDING; PAYROLL TAXES The Company shall withhold from any payment
made pursuant to this Plan any taxes required to be withheld from such
payment under local, state or federal law. A Beneficiary, however, may
elect not to have withholding of federal income tax pursuant to Section
3405(a)(2) of the Code, or any successor provision thereto.
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6.9 PAYMENT TO GUARDIAN If a Plan benefit is payable to a minor or a person
declared incompetent or to a person incapable of handling the
disposition of the property, the Retirement Committee may direct
payment tot he guardian, legal representative or person having the care
and custody of such minor, incompetent or person. The Retirement
Committee may require proof of incompetency, minority, incapacity or
guardianship as it may deem appropriate prior to distribution. Such
distribution shall completely discharge the Retirement Committee and
Company from all liability with respect to such benefit.
ARTICLE 7
BENEFICIARIES
7.1 BENEFICIARIES. Each Participant may from time to time designate one or
more persons (who may be any one or more members of such person's
family or other persons, administrators, trusts, foundations or other
entities) as his or her Beneficiary under the Plan. Such designation
shall be made on a form prescribed by the Administrator. Each
Participant may at any time and from time to time, change any previous
Beneficiary designation, without notice to or consent of any previously
designated Beneficiary, by amending his or her previous designation on
a form prescribed by the Administrator. If no person shall be
designated by the Participant as a Beneficiary, or if the designated
Beneficiary shall not survive the Participant, payment of his/her
interest shall be made to the Participant's estate. If more than one
person is the beneficiary of a deceased Participant, each such person
shall receive a pro rata share of any death benefit payable unless
otherwise designated on the applicable form.
7.2 LOST BENEFICIARY.
a) All Participants and Beneficiaries shall have the obligation
to keep the Administrator informed of their current address
until such time as all benefits due have been paid.
b) If a Participant or Beneficiary cannot be located by the
Administrator exercising due diligence, then, in its sole
discretion, the Administrator may presume that the Participant
or beneficiary is deceased for purposes of the Plan and all
unpaid amounts (net of due diligence expenses) owed to the
Participant or beneficiary shall be paid accordingly or, if a
Beneficiary cannot be so located, then such amounts may be
forfeited. Any such presumption of death shall be final,
conclusive and binding on all parties. Notwithstanding the
foregoing, if any such Beneficiary is located within five
years from the date of any such forfeiture, such Beneficiary
shall be entitled to receive the amount previously forfeited.
7.3 CHANGE IN MARITAL STATUS If the Participant's marital status changes
after the Participant has made a beneficiary designation, the following
shall apply:
a) If the participant is married at death but was unmarried when
the designation was made, the designation shall be void unless
the spouse has consented to in the manner prescribed in
Section 7.1.
b) If the Participant is unmarried at death but was married when
the designation was made:
i) the designation shall be void if the spouse was named
beneficiary.
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ii) the designation shall remain valid if a non-spouse
beneficiary was named.
c) If the Participant was married when the designation was made
and is married to a different spouse at death, the designation
shall be void unless the new spouse has consented to it in the
manner prescribed in Section 7.1.
ARTICLE 8
FUNDING
7.1 PROHIBITION AGAINST FUNDING. Should any investment be acquired in
connection with the liabilities assumed under this Plan, it is
expressly understood and agreed that the Participants and Beneficiaries
shall not have any right with respect to, or claim against, such assets
nor shall any such purchase be construed to create a trust of any kind
or a fiduciary relationship between the Employer and the Participants,
their Beneficiaries or any other person. Any such assets shall be and
remain a part of the general, unpledged, unrestricted assets of the
Employer, subject to the claims of its general creditors. It is the
express intention of the parties hereto that this arrangement shall be
unfunded for tax purposes and for purposes of Title I of the Employee
Retirement Income Security Act of 1974, as amended. Each Participant
and beneficiary shall be required to look to the provisions of this
Plan and to the Employer itself for enforcement of any and all benefits
due under this Plan, and to the extent any such person acquires a right
to receive payment under this Plan, such right shall be no greater than
the right of any unsecured general creditor of the Employer. The
Employer or the Trust shall be designated the owner and beneficiary of
any investment acquired in connection with its obligation under this
Plan.
7.2 DEPOSITS IN TRUST. Notwithstanding paragraph 8.1, or any other
provision of this Plan to the contrary, the Employer may deposit into
the Trust any amounts it deems appropriate to pay the benefits under
this Plan. The amounts so deposited may include all contributions made
pursuant to a Deferral Election by a Participant along with any
Matching Contributions.
7.3 INDEMNIFICATION OF TRUSTEE.
a) The Trustee shall not be liable for the making, retention, or
sale of any investment or reinvestment made by it, as herein
provided, nor for any loss to, or diminution of, the Trust
assets, unless due to its own negligence, willful misconduct
or lack of good faith.
b) Such Trustee shall be indemnified and saved harmless by the
Employer from and against all personal liability to which it
may be subject by reason of any act done or omitted to be done
in its official capacity as Trustee in good faith in the
administration of the Plan and Trust, including all expenses
reasonably incurred in its defense in the event the Employer
fails to provide such defense upon the request of the Trustee.
The Trustee is relieved of all responsibility in connection
with its duties hereunder to the fullest extent permitted by
law, short of breach of duty to the beneficiaries.
7.4 WITHHOLDING OF EMPLOYEE CONTRIBUTIONS. The Administrator is authorized
to make any and all necessary arrangements with the Employer in order
to withhold the Participant's Deferrals under
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Section 3.1 hereof from his or her Compensation. The Administrator
shall determine the amount and timing of such withholding.
ARTICLE 9
CLAIMS ADMINISTRATION
9.1 GENERAL. If a Participant, Beneficiary or his/her representative is
denied all or a portion of an expected Plan benefit for any reason and
the Participant, Beneficiary or his/her representative desires to
dispute the decision of the Administrator, he/she must file a written
notification of his/her claim with the Administrator.
9.2 CLAIM REVIEW. Upon receipt of any written claim for benefits, the
Administrator shall be notified and shall give due consideration to the
claim presented. If the claim is denied to any extent by the
Administrator, the Administrator shall furnish the claimant with a
written notice setting forth (in a manner calculated to be understood
by the claimant):
a) the specific reason or reasons for denial of the claim;
b) a specific reference to the Plan provisions on which the
denial 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) an explanation of the provisions of this Article.
9.4 RIGHT OF APPEAL. A claimant who has a claim denied under Section 9.2
may appeal to the Administrator for reconsideration of that claim. A
request for reconsideration under this section must be filed by written
notice within sixty (60) days after receipt by the claimant of the
notice of denial under Section 9.2.
9.4 REVIEW OF APPEAL. Upon receipt of an appeal the Administrator shall
promptly take action to give due consideration to the appeal. Such
consideration may include a hearing of the parties involved, if the
Administrator feels such a hearing is necessary. In preparing for this
appeal the claimant shall be given the right to review pertinent
documents and the right to submit in writing a statement of issues and
comments. After consideration of the merits of the appeal the
Administrator shall issue a written decision which shall be binding on
all parties subject to Section 9.6 below. The decision shall be written
in a manner calculated to be understood by the claimant and shall
specifically state its reasons and pertinent Plan provisions on which
it relies. The Administrator's decision shall be issued within sixty
(60) days after the appeal is filed, except that if a hearing is held
the decision may be issued within one hundred twenty (120) days after
the appeal is filed.
9.5 DESIGNATION. The Administrator may designate any other person of its
choosing to make any determination otherwise required under this
Article.
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9.6 ARBITRATION. A claimant whose appeal has been denied under Section 9.4
shall have the right to submit said claim to final and binding
arbitration in the State of Pennsylvania pursuant to the rules of the
American Arbitration Association. Any such requests for arbitration
must be filed by written demand to the American Arbitration Association
within sixty (60) days after receipt of the decision regarding the
appeal. The costs and expenses of arbitration, including the fees of
the arbitrators, shall be borne by the losing party. The prevailing
party shall recover as expenses all reasonable attorney's fees incurred
by it in connection with the arbitration proceeding or any appeals
therefrom.
ARTICLE 10
GENERAL PROVISIONS
10.1 ADMINISTRATOR.
a) The Administrator is expressly empowered to limit the amount
of compensation that may be deferred; to deposit amounts into
trust in accordance with Section 8.2 hereof; to interpret the
Plan, and to determine all questions arising in the
administration, interpretation and application of the Plan; to
employ actuaries, accountants, counsel, and other persons it
deems necessary in connection with the administration of the
Plan; to request any information from the Employer it deems
necessary to determine whether the Employer would be
considered insolvent or subject to a proceeding in bankruptcy;
and to take all other necessary and proper actions to fulfill
its duties as Administrator.
b) negligence, willful misconduct or lack of good faith.
c) The Administrator shall be indemnified and saved harmless by
the Employer from and against all personal liability to which
it may be subject by reason of any act done or omitted to be
done in its official capacity as Administrator in good faith
in the administration of the Plan and Trust, including all
expenses reasonably incurred in its defense in the event the
Employer fails to provide such defense upon the request of the
Administrator. The Administrator is relieved of all
responsibility in connection with its duties hereunder to the
fullest extent permitted by law, short of breach of duty to
the beneficiaries.
d) The Administrator is expressly empowered to purchase life
insurance policies on all the Participant's lives as a
condition precedent to participation in this Plan. In the
event the Administrator is unable to procure life insurance on
a Participant's life, the Administrator is expressly empowered
to deny participation to that uninsurable Participant, and/or
cease implantation of the Plan.
10.2 NO ASSIGNMENT. No benefit under the Plan shall be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge
encumbrance or charge, and any such action shall be void for all
purposes of the Plan. No benefit shall in any manner be subject to the
debts, contracts, liabilities, engagements or torts of any person, nor
shall it be subject to attachments or other legal process for or
against any person, except to such extent as may be required by law.
10.3 NO EMPLOYMENT RIGHTS. Participation in this Plan shall not be construed
to confer upon any Participant the legal right to be retained in the
employ of the Employer, or give a Participant or
14
beneficiary, or any other person, any right to any payment whatsoever,
except to the extent of the benefits provided for hereunder. Each
Participant shall remain subject to discharge to the same extent as if
this Plan had never been adopted.
10.4 INCOMPETENCE. If the Administrator determines that any person to whom a
benefit is payable under this Plan is incompetent by reason of physical
or mental disability, the Administrator shall have the power to cause
the payments becoming due to such person to be made to another
individual for the Participant's benefit without responsibility of the
Administrator or the Employer to see to the application of such
payments. Any payment made pursuant to such power shall, as to such
payment, operate as a complete discharge of the Employer, the
Administrator and the Trustee.
10.5 IDENTITY. If, at any time, any doubt exists as to the identity of any
person entitled to any payment hereunder or the amount or time of such
payment, the Administrator shall be entitled to hold such sum until
such identity or amount or time is determined or until an order of a
court of competent jurisdiction is obtained. The Administrator shall
also be entitled to pay such sum into court in accordance with the
appropriate rules of law. Any expenses incurred by the Employer,
Administrator, and Trust incident to such proceeding or litigation
shall be charged against the Account of the affected Participant.
10.6 OTHER BENEFITS. The benefits of each Participant or beneficiary
hereunder shall be in addition to any benefits paid or payable to or on
account of the Participant or beneficiary under any other pension,
disability, annuity or retirement plan or policy whatsoever.
10.7 NO LIABILITY. No liability shall attach to or be incurred by any
manager of the Employer, Trustee or any Administrator under or by
reason of the terms, conditions and provisions contained in this Plan,
or for the acts or decisions taken or made thereunder or in connection
therewith; and as a condition precedent to the establishment of this
Plan or the receipt of benefits thereunder, or both, such liability, if
any, is expressly waived and released by each Participant and by any
and all persons claiming under or through any Participant or any other
person. Such waiver and release shall be conclusively evidenced by any
act or participation in or the acceptance of benefits or the making of
any election under this Plan.
10.8 EXPENSES. All expenses incurred in the administration of the Plan,
whether incurred by the Employer or the Plan, shall be paid by the
Employer.
10.8 INSOLVENCY. Should the Employer be considered insolvent (as defined by
the Trust), the Employer, through its Board and chief executive
officer, shall give immediate written notice of such to the
Administrator of the Plan and the Trustee. Upon receipt of such notice,
the Administrator or Trustee shall cease to make any payments to
Participants who were Employees of the Employer or their beneficiaries
and shall hold any and all assets attributable to the Employer for the
benefit of the general creditors of the Employer.
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10.9 AMENDMENT AND TERMINATION.
a) Except as otherwise provided in this section, the Employer
shall have the sole authority to modify, amend or terminate
this Plan; provided, however, that any modification or
termination of this Plan shall not reduce, without the consent
of a Participant, a Participant's right to any amounts already
credited to his or her Account, or lengthen the time period
for a payout from an established Account, on the day before
the effective date of such modification or termination.
Following such termination, payment of such credited amounts
may be made in a single sum payment if the Employer so
designates. Any such decision to pay in a single sum shall
apply to all Participants.
b) A Participant shall have a vested right to his or her Account
in the event of the termination of the Plan pursuant to
section (a), above.
c) Any funds remaining in the Trust after termination of the Plan
and satisfaction of all liabilities to Participants and
others, shall be returned to the Employer.
10.10 EMPLOYER DETERMINATIONS. Any determinations, actions or decisions of
the Employer (including but not limited to, Plan amendments and Plan
termination) shall be made by the Board in accordance with its
established procedures or by such other individuals, groups or
organizations that have been properly delegated by the Board to make
such determination or decision.
10.11 CONSTRUCTION. All questions of interpretation, construction or
application arising under or concerning the terms of this Plan shall be
decided by the Administrator, in its sole and final discretion, whose
decision shall be final, binding and conclusive upon all persons.
10.12 GOVERNING LAW. This Plan shall be governed by, construed and
administered in accordance with the applicable laws of the Commonwealth
of Pennsylvania.
10.13 SEVERABILITY. Should any provision of the Plan or any regulations
adopted thereunder be deemed or held to be unlawful or invalid for any
reason, such fact shall not adversely affect the other provisions or
regulations unless such invalidity shall render impossible or
impractical the functioning of the Plan and, in such case, the
appropriate parties shall immediately adopt a new provision or
regulation to take the place of the one held illegal or invalid.
10.14 HEADINGS. The Article headings contained herein are inserted only as a
matter of convenience and for reference and in no way define, limit,
enlarge or describe the scope or intent of this Plan nor in any way
shall they affect this Plan or the construction of any provision
thereof.
10.15 TERMS. Capitalized terms shall have meanings as defined herein.
Singular nouns hall be read as plural, masculine pronouns shall be read
as feminine, and vice versa, as appropriate.
10.16 NOTICE Any notice required or permitted under the Plan shall be
sufficient if in writing and hand delivered or sent by registered or
certified mail. Such notice shall be deemed given as of
16
the date of delivery or , if delivered is made by mail, as of the date
shown on the postmark on the receipt for registration or certification.
Mailed notice to the Retirement Committee shall be directed to the
Company's address. Mailed notice to the Participant or Beneficiary
shall be directed to the individual's last known address in company's
records.
IN WITNESS WHEREOF, General Nutrition, Inc. has caused this instrument to be
executed by its duly authorized officer, effective as of this 29th day of March,
2002.
GENERAL NUTRITION, INCORPORATED ATTEST
By: /s/ Samuel Bookheimer By: /s/ James Sander
--------------------------------- --------------------------------
Samuel Bookheimer James Sander
Benefits Director Senior Vice President, Law,
Chief Legal Officer