Exhibit 10.15
ARTHUR J. GALLAGHER & CO.
SUPPLEMENTAL SAVINGS and THRIFT PLAN
Effective January 1, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 INTRODUCTION...................................... - 1 -
1.1 Purpose of Plan................................... - 1 -
1.2 Status of Plan.................................... - 1 -
ARTICLE 2 DEFINITIONS....................................... - 2 -
2.1 Account........................................... - 2 -
2.2 Cause............................................. - 2 -
2.3 Change of Control................................. - 2 -
2.4 Code.............................................. - 3 -
2.5 Compensation...................................... - 3 -
2.6 Hour of Service................................... - 3 -
2.7 Effective Date.................................... - 3 -
2.8 Elective Deferral................................. - 3 -
2.9 Eligible Employee................................. - 3 -
2.10 Employer.......................................... - 4 -
2.11 Entry Date........................................ - 4 -
2.12 ERISA............................................. - 4 -
2.13 Funding Trust..................................... - 4 -
2.14 Funding Trustee................................... - 4 -
2.15 Gallagher......................................... - 5 -
2.16 Insolvent......................................... - 5 -
2.17 Matching Deferral................................. - 5 -
2.18 Participant....................................... - 5 -
2.19 Performance Deferral.............................. - 5 -
2.20 Plan.............................................. - 5 -
2.21 Plan Administrator................................ - 5 -
2.22 Plan Year......................................... - 5 -
2.23 Qualified Plan.................................... - 5 -
2.24 Retirement........................................ - 5 -
2.25 Unforeseeable Emergency........................... - 6 -
ARTICLE 3 PARTICIPATION..................................... - 7 -
3.1 Commencement of Participation..................... - 7 -
3.2 Continued Participation........................... - 7 -
ARTICLE 4 ELECTIVE AND MATCHING DEFERRALS................... - 8 -
4.1 Elective Deferrals................................ - 8 -
4.2 Matching Deferrals................................ - 9 -
4.3 Performance Deferrals.............................- 10 -
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ARTICLE 5 ACCOUNTS...........................................- 11 -
5.1 Accounts..........................................- 11 -
5.2 Investments.......................................- 12 -
ARTICLE 6 VESTING............................................- 13 -
6.1 General...........................................- 13 -
6.2 Change of Control.................................- 13 -
6.3 Retirement, Death or Disability...................- 13 -
6.4 Insolvency........................................- 14 -
ARTICLE 7 PAYMENTS...........................................- 15 -
7.1 Election as to Time and Form of Payment...........- 15 -
7.2 Termination of Employment.........................- 18 -
7.3 Death.............................................- 18 -
7.4 Withdrawal Due to Unforeseeable Emergency.........- 19 -
7.5 Distributions Due to a Suspension of Deferrals....- 19 -
7.6 Forfeiture of Non-vested Amounts..................- 20 -
7.7 Taxes.............................................- 20 -
ARTICLE 8 PLAN ADMINISTRATOR................................- 21 -
8.1 Plan Administration and Interpretation............- 21 -
8.2 Powers, Duties, Procedures, Etc...................- 21 -
8.3 Information.......................................- 22 -
8.4 Indemnification of Plan Administrator.............- 22 -
ARTICLE 9 AMENDMENT AND TERMINATION.........................- 23 -
9.1 Amendments........................................- 23 -
9.2 Termination of Plan...............................- 23 -
9.3 Existing Rights...................................- 24 -
ARTICLE 10 MISCELLANEOUS.....................................- 25 -
10.1 No Funding........................................- 25 -
10.2 Non-assignability.................................- 25 -
10.3 Limitation of Participant's Rights................- 25 -
10.4 Participants Bound................................- 26 -
10.5 Receipt and Release...............................- 26 -
10.6 Governing Law.....................................- 26 -
10.7 Headings and Subheadings..........................- 27 -
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ARTICLE 1
INTRODUCTION
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1.1 Purpose of Plan
Gallagher has adopted the Plan to provide a means by which certain
employees may elect to defer receipt of portions of their Compensation and to
provide opportunities for such individuals to save for retirement on the terms
and conditions set forth herein.
1.2 Status of Plan
The Plan is intended to be "a plan which is unfunded and is maintained by
an employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees" within the meaning
of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and shall be interpreted
and administered consistent with that intent.
ARTICLE 2
DEFINITIONS
-----------
Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:
2.1 Account means, for each Participant, the account established for his
or her benefit under Section 5.1.
2.2 Cause means gross misconduct or a willful and material breach of any
agreement between the Employer and the Participant; provided that, no act or
failure to act on the Participant's part shall be deemed "willful" unless done,
or omitted to be done, by the Participant not in good faith and without a
reasonable belief that the action or omission was in the best interest of the
Employer.
2.3 Change of Control means: (i) any person or group, as defined in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended,
is or becomes the beneficial owner, directly or indirectly of securities of
Gallagher representing fifty percent (50%) or more of the combined voting power
of Gallagher's outstanding securities then entitled to vote for the election of
directors; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board of Directors of Gallagher
(the "Board") and any new directors whose election by the Board or nomination
for election by Gallagher's stockholders was approved by at least two-thirds of
the directors then still in office who either were directors at the beginning of
the period or whose election was previously so approved cease for any reason to
constitute at least a majority thereof; or (iii) the stockholders of Gallagher
shall approve the sale of all or substantially all of the assets of Gallagher or
any
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merger, consolidation, issuance of securities or purchase of assets, the result
of which would be the occurrence of any event described in clause (i) or (ii)
above.
2.4 Code means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes reference to
any comparable or succeeding provisions of any legislation which amends,
supplements or replaces such section or subsection.
2.5 Compensation means in the case of a Participant who is an Eligible
Employee, the total cash compensation of such Participant paid by the Employer
during any year, including salary and annual bonuses (paid with respect to
performance in 1999 and later years), overtime pay and commissioned earnings
(whether paid as a draw against commissions or as a settlement of earned
commissions), before reductions for contributions made to this Plan, the
Qualified Plan, or a cafeteria plan under Code Section 125, but not including
(i) relocation pay or related payments; (ii) severance pay and (iii) Matching
Deferrals and Performance Deferrals under this Plan.
2.6 Hour of Service means an Hour of Service as calculated for purposes of
the Qualified Plan.
2.7 Effective Date means January 1, 1999.
2.8 Elective Deferral means the portion of Compensation which is deferred
by a Participant under Section 4.1.
2.9 Eligible Employee means, on the Effective Date or on any Entry Date
thereafter, each employee of the Employer (i) whose total annual Compensation is
not less than $160,000 based upon such employee's current salary or Compensation
for the prior year; and
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(ii) who has completed sixty (60) days of employment with the Employer. If an
Eligible Employee's actual Compensation is (i) less than $160,000 during two
consecutive Plan Years, such Eligible Employee will be suspended from making any
additional Elective Deferrals under the Plan for each subsequent Plan Year,
until the Plan Year following the Plan Year such Eligible Employee's
Compensation is not less than $160,000; or (ii) less than $100,000 for two
consecutive Plan Years, such Eligible Employee's Account shall be distributed in
accordance with the terms of Section 7.7 unless, prior to such distribution,
such Eligible Employee's Compensation is not less than $160,000 in a Plan Year.
2.10 Employer means Gallagher or each other entity that is affiliated with
Gallagher and that adopts the Plan with its consent.
2.11 Entry Date means (i) except as provided in clause (ii), January 1 of
each Plan Year; and (ii) in the case of an individual described in Section
4.1(d)(iii), the date as of which his or her election to defer is effective, as
described therein.
2.12 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of any legislation
that amends, supplements or replaces such section or subsection.
2.13 Funding Trust means the grantor trust established by Gallagher to
hold assets contributed under the Plan.
2.14 Funding Trustee means the trustee or trustees under the Funding
Trust.
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2.15 Gallagher means Arthur J. Gallagher & Co., an Illinois corporation,
and any successor to all or a major portion of Gallagher's assets or business
that assumes the obligations of Gallagher (with Gallagher's consent if it is
still in existence).
2.16 Insolvent means either (i) the Employer is unable to pay its debts as
they become due, or (ii) the Employer is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
2.17 Matching Deferral means a contribution by the Employer for the
benefit of a Participant who is an Eligible Employee, as described in Section
4.2.
2.18 Participant means any individual who participates in the Plan in
accordance with Article 3.
2.19 Performance Deferral means a discretionary contribution by the
Employer for the benefit of a Participant who is an Eligible Employee, as
described in Section 4.3.
2.20 Plan means the Arthur J. Gallagher & Co. Supplemental Savings and
Thrift Plan as provided herein and as amended from time to time.
2.21 Plan Administrator means the person, persons or entity designated by
Gallagher to administer the Plan. If no such person or entity is so serving at
any time, Gallagher shall be the Plan Administrator.
2.22 Plan Year means the 12-month period ending on December 31.
2.23 Qualified Plan means the Arthur J. Gallagher & Co. Employees'
401(k) Savings and Thrift Plan.
2.24 Retirement means any termination of an Employee's employment with the
Employer on or after his or her 65th birthday that is not for Cause.
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2.25 Unforeseeable Emergency means an immediate and heavy financial need
resulting from any of the following:
(a) Expenses which are not covered by insurance and which the
Participant or his or her spouse or dependent has incurred as a result of, or is
required to incur in order to receive, medical care;
(b) The need to prevent eviction of a Participant from his or her
principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
(c) Any other circumstance that is determined by the Plan
Administrator in its sole discretion to constitute an unforeseeable emergency
that (i) is not covered by insurance, (ii) cannot reasonably be relieved by the
liquidation of the Participant's assets, and (iii) is consistent with the intent
of Treasury Regulation Section 1.457-2(h)(4).
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ARTICLE 3
PARTICIPATION
-------------
3.1 Commencement of Participation
An Eligible Employee shall become a Participant in the Plan on the first
Entry Date as of which he or she begins to defer Compensation in accordance with
Section 4.1 or on the date determined by the Plan Administrator with respect to
a Matching Deferral under Section 4.2 or a Performance Deferral under Section
4.3.
3.2 Continued Participation
A Participant in the Plan shall continue to be a Participant so long as any
amount remains credited to his or her Account.
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ARTICLE 4
ELECTIVE AND MATCHING DEFERRALS
-------------------------------
4.1 Elective Deferrals
(a) An individual who is an Eligible Employee may elect to defer (i) a
percentage or dollar amount of his or her Compensation and/or (ii) an amount of
Compensation from his or her final pay check for a calendar year which is
determined by the Plan Administrator to be equal to the amount of his or her
elective deferrals under the Qualified Plan that will be returned because of a
failure to meet the nondiscrimination rules of Section 401(k) of the Code. An
Eligible Employee who desires to elect a deferral described in (i) and/or (ii)
above shall complete and file an Enrollment Form with the Plan Administrator.
(b) Each Enrollment Form shall designate whether the election is made
for amounts deferred pursuant to Sections 4.1(a)(i) or 4.1(a)(ii) above and in
the case of deferrals pursuant to Section 4.1(a)(i), either (i) the percentage
to be deferred in one percent (1%) increments to a maximum of one hundred
percent (100%); or (ii) the whole dollar amount of each paycheck to be deferred.
A separate election may be made for the bonus portion of Compensation under
Section 4.1(a)(i).
(c) The Enrollment Form may also indicate the Participant's
distribution election in accordance with the provisions of Section 7.1.
(d) Except as provided in the next sentence, elections pursuant to
Section 4.1(a) to defer Compensation paid in a Plan Year must be made prior to
the first day of such Plan Year. Notwithstanding the foregoing: (i) the election
to defer the salary portion of
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Compensation pursuant to Section 4.1(a)(i) for the 1999 Plan Year must be made
prior to January 7, 1999; (ii) an election to defer the bonus portion of
Compensation pursuant to Section 4.1(a)(i) must be made on or prior to September
30 of the Plan Year prior to the Plan Year in which the bonus is paid; and (iii)
in the case of an individual who first becomes an Eligible Employee following
the commencement of a Plan Year, the election to defer must be made within 30
days after the date the individual becomes an Eligible Employee, and will be
effective with respect to Compensation earned after the Enrollment Form is
filed. Any election pursuant to this paragraph shall be irrevocable from and
after the deadline for such election provided that it may be changed after such
deadline in the event of (and consistent with) an Unforeseeable Emergency, as
determined by the Plan Administrator.
(e) An election to defer a percentage or dollar amount of Compensation
for any Plan Year shall apply for subsequent Plan Years unless changed or
revoked as described in the next sentence. A Participant may change or revoke
his or her deferral election as of any Entry Date by filing a new Enrollment
Form with the Plan Administrator.
4.2 Matching Deferrals
(a) No later than the date required by law for Matching Conditions
under the Qualified Plan (or the later date as of which the need for a
contribution hereunder is determined), the Employer shall contribute a Matching
Deferral to the Account of each Eligible Employee who is employed by the
Employer on the last day of the Plan Year or terminated employment by reason of
death, total disability, Change in Control or Retirement, to the extent
described in paragraph (b).
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(b) The Matching Deferral for each Eligible Employee for the Plan Year
shall be equal to the excess of the lesser of (A) 50% of his Elective Deferrals
under the Plan or (B) two percent (2%) of his Compensation, less any matching
contributions he received under the Qualified Plan for such Plan Year.
4.3 Performance Deferrals
Any Eligible Employee may also receive a Performance Deferral in an amount
to be determined by the Employer. All determinations by the Employer with regard
to the amount or timing of or the eligibility for a Performance Deferral, shall
be final.
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ARTICLE 5
ACCOUNTS
--------
5.1 Accounts
--------
The Plan Administrator shall establish an Account for each Participant
reflecting Elective Deferrals, Matching Deferrals and Performance Deferrals made
for the Participant's benefit together with any adjustments for income, gain or
loss and any payments from the Account. Elective Deferrals, Matching Deferrals
and Performance Deferrals will be credited to the Account of each applicable
Participant as of the later of the date they are received by the Funding Trustee
or the date the Funding Trustee receives from the Plan Administrator such
instructions as the Funding Trustee may reasonably require to allocate the
amount received among the asset accounts maintained by the Funding Trustee. As
of the last day of each calendar quarter, the Plan Administrator shall provide
the Participant with a statement of his or her Account reflecting the income,
gain and loss, amounts of deferrals, and payments from such Account since the
prior statement.
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5.2 Investments
-----------
(a) The assets of the Funding Trust shall be invested in such
investments as are designated by the Plan Administrator. The Plan Administrator
shall provide each Participant with the opportunity to indicate how his or her
Account is apportioned to the investments designated by the Plan Administrator
in five percent (5%) increments. A Participant's preference shall not be binding
on the Funding Trustee or Plan Administrator. The Plan Administrator has the
authority to direct the investment of all the assets held in the Funding Trust
and shall invest such assets among the investments designated by the Plan
Administrator as it deems appropriate.
(b) Each investment fund's operating expenses will be netted against
such investment fund's return. Other Plan legal, trustee and administrative
expenses will be paid by the Employer.
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ARTICLE 6
VESTING
6.1 General
A Participant shall at all times have a fully vested and nonforfeitable
right to all Elective Deferrals and Matching Deferrals credited to his or her
Account, adjusted for income, gain and loss attributable thereto. Subject to
earlier vesting as provided in Sections 6.2, 6.3 and 6.4, a Participant shall be
or become vested in the portion of his or her Account attributable to
Performance Deferrals, adjusted for income, gain and loss attributable thereto,
as determined by the Employer at the time the Performance Deferral is made. If
the vesting or vested percentage is based on the Participant's "Years of
Service," the Participant shall receive credit for a Year of Service for each
Plan Year (including Plan Years before the date as of which the Performance
Deferral is made and the Effective Date only to the extent determined by the
Employer) during which he or she completed at least 1,000 of Hours of Service
6.2 Change of Control
A Participant shall become fully vested in his or her Account upon
termination of his or her employment with the Employer after a Change of
Control, other than termination for Cause.
6.3 Retirement, Death or Disability
A Participant shall become fully vested in his or her Account upon
termination of the Participant's employment by reason of the Participant's
Retirement, death or total and permanent disability (as determined by the Plan
Administrator).
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6.4 Insolvency
A Participant shall become fully vested in his or her Account immediately
prior to the Employer's becoming Insolvent, in which case the Participant will
have the same rights as a general creditor of the Employer with respect to his
or her Account balance.
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ARTICLE 7
PAYMENTS
--------
7.1 Election as to Time and Form of Payment
(a) A Participant may specify a distribution date applicable to his
or her Elective Deferrals, Matching Deferrals and vested Performance Deferrals
in accordance with the following:
(i) A Participant may specify (on the first Enrollment Form used
under Section 4.1) that all Elective Deferrals, Matching
Deferrals and vested Performance Deferrals described in the
last sentence of this subparagraph (i), adjusted for income,
gain and loss attributable thereto, will be paid or commence
to be paid to the Participant on a specific date or at
Retirement. Such specified date shall not be earlier than
the January 1 that is at least five (5) years after the
first Plan Year subject to such Enrollment Form and shall
apply to all Elective Deferrals, Matching Deferrals and
vested Performance Deferrals for (A) the Plan Year for which
the Enrollment Form is filed; (B) any prior Plan Year, in
the case of a Matching Deferral or Performance Deferral; and
(C) any subsequent Plan Year the last day of which is at
least one full Plan Year before the Participant's elected
distribution date.
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(ii) On the Enrollment Form filed for the first Plan Year with
respect to which a distribution date election under
subparagraph (i) would not be applicable (and for the first
Plan Year with respect to which an election under this
subparagraph would not be applicable pursuant to the last
sentence of this subparagraph), a Participant may specify
the date on which distribution of the Participant's Elective
Deferrals, Matching Deferrals and vested Performance
Deferrals described in the last sentence of this
subparagraph (ii), as adjusted for income, gain and loss
attributable thereto, will be paid or commenced to be paid
to the Participant. Such specified date shall not be earlier
than the January 1 that is at least five (5) years after the
Plan Year subject to such Enrollment Form and shall apply to
all Elective Deferrals, Matching Deferrals and vested
Performance Deferrals (as adjusted) for the Plan Year for
which the Enrollment form is filed, and for any subsequent
Plan Year the last day of which is at least one full Plan
Year before the Participant's specified distribution date.
(b) If approved by the Plan Administrator, (i) a Participant who has
not made an election under subparagraph (a) with respect to a given Elective
Deferral, Matching Deferral and/or vested Performance Deferral may make an
election with respect to such Deferral or Deferrals; provided that (A) the
Participant is actively employed when such
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election is filed; and (B) the specified date for distribution is (I) at least
five years after the earliest Enrollment Form filed with respect to Deferrals
that are subject to such distribution election; and (II) at least twenty-four
(24) months after the date the election is filed; and (ii) a Participant may
change a distribution date elected under subparagraph (a); provided that (A) the
Participant is actively employed when such election is filed; (B) the change is
filed with the Plan Administrator no later than the December 31 that is at least
one year before the Plan Year in which the elected date occurs; (C) the new date
for distribution occurs no earlier than twenty-four (24) full months after the
month of the previously elected date; and (D) no more than one change in
distribution dates may be made by a Participant during any five (5) year period.
(c) A Participant's distribution may be in either of the following
forms (as elected on an Enrollment Form or as otherwise pursuant to procedures
prescribed by the Plan Administrator):
(i) A single lump-sum payment; or
(ii) Annual installments over a period elected by the
Participant of up to ten (10) years, the amount of each
installment to equal the then balance of the Account
divided by the number of installments remaining to be paid.
A Participant who has made no election under this paragraph (c) or a Participant
who has made such an election and wishes to change the election, may make an
election under this paragraph; provided that, no election that is made other
than in connection with an election
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made under paragraph (a) or (b) shall be effective until 12 months after the
date the election is filed with the Plan Administrator.
(d) Except as provided in Sections 7.2, 7.3, 7.4, 7.5 and 7.6,
payments from a Participant's Account shall be made in accordance with the
Participant's elections under this Section 7.1. If a Participant has not made a
distribution election with respect to a given Elective Deferral, Matching
Deferral and/or vested Performance Deferral, such Deferral or Deferrals shall be
distributed in a single lump sum upon the termination of the Participant's
employment.
(e) Payments from a Participant's Account shall be in cash.
7.2 Termination of Employment
Upon termination of a Participant's employment for any reason other than
death, the vested portion of the Participant's Account (including any portion
vested pursuant to Section 6.3 as a consequence of the Participant's Retirement
or total and permanent disability) shall be paid to the Participant according to
the Participant's distribution election, unless the Plan Administrator elects,
in its sole discretion, to pay out a Participant's account balance in a single
lump sum as soon as practicable following the date of termination.
7.3 Death
(a) If a Participant dies prior to the complete distribution of his
or her Account, the balance of the Account shall be paid to the Participant's
designated beneficiary or beneficiaries, according to the Participant's
distribution election, unless the Plan Administrator elects, in its sole
discretion, to pay out a Participant's account balance in a single lump sum as
soon as practicable following the date of termination.
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(b) A Participant may designate a beneficiary by so notifying the
Plan Administrator in writing, at any time before Participant's death, on a form
prescribed by the Plan Administrator for that purpose. A Participant may revoke
any beneficiary designation or designate a new beneficiary at any time without
the consent of a beneficiary or any other person. If no beneficiary is
designated or no designated beneficiary survives the Participant, payment shall
be made to the Participant's surviving spouse, or, if none, to the Participant's
issue per stirpes, in a single payment. If no spouse or issue survives the
Participant, payment shall be made in a single lump sum to the Participant's
estate.
7.4 Withdrawal Due to Unforeseeable Emergency
If a Participant suffers an Unforeseeable Emergency, the Plan
Administrator, in its sole discretion, may pay to the Participant only that
portion, if any, of the vested portion of his or her Account which the Plan
Administrator determines is necessary to satisfy the emergency need, including
any amounts necessary to pay any federal, state or local income taxes reasonably
anticipated to result from the distribution. A Participant requesting an
emergency payment shall apply for the payment in writing using a form prescribed
by the Plan Administrator for that purpose and shall provide such additional
information as the Plan Administrator may require.
7.5 Distributions Due to a Suspension of Deferrals
In the event that a Participant's Account is required to be distributed
pursuant to Section 2.9(ii), the entire balance of such Participant's Account
shall be distributed on the last day of the fifth Plan Year following the second
consecutive Plan Year in which such Participant's Compensation was less than
$100,000.
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7.6 Forfeiture of Non-vested Amounts
To the extent that any amounts credited to a Participant's Account are not
vested at the time such amounts are otherwise payable under Sections 7.1 and
7.2, or as provided for in Sections 7.5 and 7.6, they shall be forfeited and
shall be used to satisfy the Employer's obligation to make contributions to the
Funding Trust under the Plan.
7.7 Taxes
All federal, state or local taxes that the Plan Administrator determines
are required to be withheld from any payments made pursuant to this Article 7
shall be withheld.
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ARTICLE 8
PLAN ADMINISTRATOR
------------------
8.1 Plan Administration and Interpretation
The Plan Administrator shall oversee the administration of the Plan. The
Plan Administrator shall have complete control and authority to determine the
rights and benefits and all claims, demands and actions arising out of the
provisions of the Plan of any Participant, beneficiary, deceased Participant, or
other person having or claiming to have any interest under the Plan. The Plan
Administrator shall have complete discretion to interpret the Plan and to decide
all matters under the Plan. Such interpretation and decision shall be final,
conclusive and binding on all Participants and any person claiming under or
through any Participant, in the absence of clear and convincing evidence that
the Plan Administrator acted arbitrarily and capriciously. Any individual(s)
serving as Plan Administrator who is a Participant will not vote or act on any
matter relating solely to himself or herself. When making a determination or
calculation, the Plan Administrator shall be entitled to rely on information
furnished by a Participant, a beneficiary, the Employer or the Funding Trustee.
The Plan Administrator shall have the responsibility for complying with any
reporting and disclosure requirements of ERISA.
8.2 Powers, Duties, Procedures, Etc.
The Plan Administrator shall have such powers and duties, may adopt such
rules and tables, may act in accordance with such procedures, may appoint such
officers or agents, may delegate such powers and duties, and shall follow such
claims and appeal procedures with respect to the Plan as it may establish.
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8.3 Information
To enable the Plan Administrator to perform its functions, the Employer
shall supply full and timely information to the Plan Administrator on all
matters relating to the compensation of Participants, their employment,
Retirement, death, termination of employment, and such other pertinent facts as
the Plan Administrator may require.
8.4 Indemnification of Plan Administrator
The Employer agrees to indemnify and to defend to the fullest extent
permitted by law any officer(s) or employee(s) who serve as Plan Administrator
(including any such individual who formerly served as Plan Administrator)
against all liabilities, damages, costs and expenses (including attorneys' fees
and amounts paid in settlement of any claims approved by the Employer)
occasioned by any act or omission to act in connection with the Plan, if such
act or omission is in good faith.
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ARTICLE 9
AMENDMENT AND TERMINATION
-------------------------
9.1 Amendments
Gallagher shall have the right to amend the Plan from time to time,
subject to Section 9.3, by an instrument in writing which has been executed on
its behalf by a duly authorized officer.
9.2 Termination of Plan
The Plan is strictly a voluntary undertaking on the part of the Employer
and shall not be deemed to constitute a contract between the Employer and any
Eligible Employee (or any other employee), a consideration for, or an inducement
or condition of employment for, the performance of the services by any Eligible
Employee (or other employee). Gallagher reserves the right to terminate the Plan
at any time, subject to Section 9.3, by an instrument in writing which has been
executed on its behalf by a duly authorized officer. Upon termination, Gallagher
may (i) elect to continue to maintain the Funding Trust to pay benefits
hereunder as they become due as if the Plan had not terminated or (ii) direct
the Funding Trustee to pay promptly to Participants (or their beneficiaries) the
vested balance of their Accounts. For purposes of the preceding sentence, in the
event clause (ii) is implemented, the Account balance of all Participants who
are in the employ of the Employer at the time the Funding Trustee is directed to
pay such balances shall become fully vested and nonforfeitable. After
Participants and their beneficiaries are paid all Plan benefits to which they
are entitled, all remaining assets of the Funding Trust attributable to
Participants who terminated employment
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with the Employer before they were fully vested in their Accounts under Article
6 at that time shall be returned to the Employer.
9.3 Existing Rights
No amendment or termination of the Plan shall adversely affect the rights
of any Participant with respect to amounts that have been credited to his or her
Account prior to the date of such amendment or termination except as provided in
Section 9.2.
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ARTICLE 10
MISCELLANEOUS
-------------
10.1 No Funding
The Plan constitutes a mere promise by the Employer to make payments in
accordance with the term of the Plan and Participants and beneficiaries shall
have the status of general unsecured creditors of the Employer. Nothing in the
Plan will be construed to give any employee or any other person rights to any
specific assets of the Employer or of any other person. In all events, it is the
intent of the Employer that the Plan be treated as unfunded for tax purposes and
for purposes of Title I of ERISA.
10.2 Non-assignability
None of the benefits, payments, proceeds or claims of any Participant or
beneficiary shall be subject to any claim of any creditor of any Participant or
beneficiary and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor of such Participant or
beneficiary, nor shall any Participant or beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or
payments or proceeds which he or she may expect to receive, contingently or
otherwise under the Plan.
10.3 Limitation of Participant's Rights
Nothing contained in the Plan shall confer upon any person a right to be
employed or to continue in the employ of the Employer, or interfere in any way
with the right of the Employer to terminate the employment of a Participant in
the Plan at any time, with or without cause.
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10.4 Participants Bound
Any action with respect to the Plan taken by the Plan Administrator or the
Funding Trustee or any action authorized by or taken at the direction of the
Plan Administrator, the Employer or the Funding Trustee shall be conclusive upon
all Participants and beneficiaries entitled to benefits under the Plan.
10.5 Receipt and Release
Any payment to any Participant or beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against the Employer, the Plan Administrator and the Funding Trustee
under the Plan, and the Plan Administrator may require such Participant or
beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect. If any Participant or beneficiary is determined by the
Plan Administrator to be incompetent by reason of physical or mental disability
or other legal disability (including minority) to give a valid receipt and
release, the Plan Administrator may cause the payment or payments becoming due
to such person to be made to another person for his or her benefit without
responsibility on the part of the Plan Administrator, the Employer or the
Funding Trustee to follow the application of such funds.
10.6 Governing Law
The Plan shall be construed, administered, and governed in all respects
under and by the laws of the State of Illinois. If any provision shall be held
by a court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions hereof shall continue to be fully effective.
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10.7 Headings and Subheadings
Headings and subheading in this Plan are inserted for convenience only and
are not to be considered in the construction of the provisions hereof. EXECUTED,
on behalf of Arthur J. Gallagher & Company as of the ____ day of __________,
1998.
ARTHUR J. GALLAGHER & CO.
By_______________________________
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