EXHIBIT 10.8
FMC CORPORATION
NON-QUALIFIED RETIREMENT AND THRIFT PLAN
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(Amended and Restated Effective as of September 1, 1997)
CERTIFICATE
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I, _______________________, the_____________________ of FMC Corporation, do
hereby certify that the attached is a true and correct copy of the FMC
Corporation Non-Qualified Retirement and Thrift Plan (As Amended and Restated
Effective as of September 1, 1997).
By:___________________________________
Title:________________________________
Dated this ____ day of _______________, 1997.
FMC CORPORATION
NON-QUALIFIED RETIREMENT AND THRIFT PLAN
----------------------------------------
(Amended and Restated Effective as of September 1, 1997)
Table of Contents
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ARTICLE I 1
Introduction 1
Section 1.1. Name; Purpose 1
Section 1.2. Administration of the Plan 1
ARTICLE II 2
Definitions 2
Section 2.1. "Account" 2
Section 2.2. "Account Balance" 2
Section 2.3. "Accounting Date" 2
Section 2.4. "Adopting Affiliate" 2
Section 2.5. "Affiliated Group" 2
Section 2.6. "Board" 2
Section 2.7. "Code" 2
Section 2.8. "Committee" 2
Section 2.9. "Company" 2
Section 2.10. "Company Stock" 3
Section 2.11. "Compensation" 3
Section 2.12. "Deferral Contributions" 3
Section 2.13. "Deferral Contributions Account" 3
Section 2.14. "Effective Date" 3
Section 2.15. "Employer" 3
Section 2.16. "ERISA" 3
Section 2.17. "Excess Compensation" 3
Section 2.18. "Matching Contributions" 3
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FMC CORPORATION
NON-QUALIFIED RETIREMENT AND THRIFT PLAN
(Amended and Restated Effective as of September 1, 1997)
Table of Contents
ARTICLE I 1
Introduction 1
Section 1.1. Name; Purpose 1
Section 1.2. Administration of the Plan 1
ARTICLE II 2
Definitions 2
Section 2.1. "Account" 2
Section 2.2. "Account Balance" 2
Section 2.3. "Accounting Date" 2
Section 2.4. "Adopting Affiliate" 2
Section 2.5. "Affiliated Group" 2
Section 2.6. "Board" 2
Section 2.7. "Code" 2
Section 2.8. "Committee" 2
Section 2.9. "Company" 2
Section 2.10. "Company Stock" 3
Section 2.11. "Compensation" 3
Section 2.12. "Deferral Contributions" 3
Section 2.13. "Deferral Contributions Account" 3
Section 2.14. "Effective Date" 3
Section 2.15. "Employer" 3
Section 2.16. "ERISA" 3
Section 2.17. "Excess Compensation" 3
Section 2.18. "Matching Contributions" 3
Section 2.19. "Matching Contributions Account" 3
Section 2.20. "Participant" 4
Section 2.21. "Permitted Investment" 4
Section 2.22. "Plan" 4
Section 2.23. "Plan Year" 4
Section 2.24. "Supplemental Retirement Benefit" 4
Section 2.25. "Tax-Qualified Plans" 4
Section 2.26. "Tax-Qualified Retirement Plan" 4
Section 2.27. "Tax-Qualified Thrift Plan" 4
Section 2.28. "Year of Service" 4
ARTICLE III 4
Plan Participation 4
Section 3.1. Eligibility 4
Section 3.2. Participation 5
ARTICLE IV 6
Deferral Plan Contributions 5
Section 4.1. Deferral Contributions 5
Section 4.2. Deferral Contributions Account 5
ARTICLE V 6
Matching Contributions 6
Section 5.1. Matching Contributions 6
Section 5.2. Matching Contributions Account 6
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ARTICLE VI 6
Deemed Earnings on Account Balances 6
Section 6.1. 6
(a) Permitted Investments 6
(b) Receipts 7
(c) Disposition 7
(d) Elections 7
(e) Actual Investment Not Required 7
Section 6.2. Crediting of Deferrals 7
Section 6.3. Statement of Accounts 8
ARTICLE VII 8
Supplemental Retirement Benefits 8
Section 7.1. Amount of Benefits 8
Section 7.2. No Supplemental Retirement Benefit Account. 8
ARTICLE VIII 9
Establishment of Trust 9
Section 8.1. Establishment of Trust 9
Section 8.2. Status of Trust 9
ARTICLE IX 9
Distribution of Account Balances 9
Section 9.1. Distribution of Accounts 9
Section 9.2. Emergency Payments 10
Section 9.3. Distribution of Supplemental Retirement Benefits 11
Section 9.4. Distribution of Accounts of Certain Former Employees 11
Section 9.5. Involuntary Distributions 11
Section 9.6. Forfeitures 12
Section 9.7. Designation of Beneficiaries 12
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ARTICLE X 13
Amendment and Termination 13
Section 10.1. Amendment 13
Section 10.2. Plan Termination 13
ARTICLE XI 13
General Provisions 13
Section 11.1. Non-Alienation of Benefits 13
Section 11.2. Withholding for Taxes 13
Section 11.3. Immunity of Committee Members 14
Section 11.4. Plan Not to Affect Employment Relationship 14
Section 11.5. Action by the Employers 14
Section 11.6. Effect on Other Employee Benefit Plans 14
Section 11.7. Assumption of Employer Liability 14
Section 11.8. Notices 15
Section 11.9. Gender and Number; Headings 15
Section 11.10. Controlling Law 15
Section 11.11. Successors 15
Section 11.12. Severability 15
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FMC CORPORATION
NON-QUALIFIED RETIREMENT AND THRIFT PLAN
----------------------------------------
(Amended and Restated Effective as of September 1, 1997)
ARTICLE I
Introduction
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Section 1.1. Name; Purpose. The Company established the FMC Deferred
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Compensation Equivalent Retirement and Thrift Plan effective as of January 1,
1977. This document constitutes an amendment and restatement of such plan, which
is renamed the "FMC Corporation Non-Qualified Retirement and Thrift Plan,"
effective as of September 1, 1997. Unless otherwise expressly provided herein,
the capitalized terms used in the Plan shall have the meanings set forth in
Article II. This Plan shall constitute an unfunded non-qualified deferred
compensation arrangement established for the purpose of providing deferred
compensation to a select group of management or highly compensated employees (as
defined for purposes of Title I of ERISA) of the Company. The Plan is intended
to be maintained and administered in connection with the Tax-Qualified
Retirement Plan and the Tax-Qualified Thrift Plan for the benefit of selected
employees of the Company whose employee pre-tax contributions and benefits that
would have been provided to such employees under the terms of the Tax-Qualified
Plans but for the exclusion of deferred compensation from creditable
compensation thereunder for purposes of computing benefits and contributions,
the limitations of Section 401(a)(17) of the Code and, effective as of January
1, 1998, the limitations of Section 402(g) of the Code.
Section 1.2. Administration of the Plan. The Plan shall be administered
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by the Committee. The duties and authority of the Committee under the Plan
shall include (i) the interpretation of the provisions of the Plan, (ii) the
adoption of any rules and regulations which may become necessary or advisable in
the operation of the Plan, (iii) the making of such determinations as may be
permitted or required pursuant to the Plan, and (iv) the taking of such other
actions as may be required for the proper administration of the Plan in
accordance with its terms. Any decision of the Committee with respect to any
matter within the authority of the Committee shall be final, binding and
conclusive upon the Company and each Participant, former Participant, designated
beneficiary, and each person claiming under or through any Participant or
designated beneficiary; and no additional authorization or ratification by the
Board shall be required. Any action taken by the Committee with respect to any
one or more Participants shall not be binding on the Committee as to any action
to be taken with respect to any other Participant. A member of the Committee may
be a Participant, but no member of
1
the Committee may participate in any decision directly affecting his rights or
the computation of his benefits under the Plan. Each determination required or
permitted under the Plan shall be made by the Committee in the sole and absolute
discretion of the Committee.
ARTICLE II
Definitions
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Section 2.1. "Account" means a bookkeeping account maintained by the
Company for a Participant under the Plan, including the Deferral Contributions
Account and the Matching Contributions Account of a Participant.
Section 2.2. "Account Balance" means the value, as of a specified date,
of any of the Accounts of a Participant.
Section 2.3. "Accounting Date" means the last day of each Plan Year, or
such other date or dates as the Committee may establish under the Plan.
Section 2.4. "Adopting Affiliate" means an entity that, together with the
Company, is considered as a single employer for purposes of Sections 414(b), (c)
or (m) of the Code and that has adopted the Tax-Qualified Plans pursuant to the
applicable provisions of such plans.
Section 2.5. "Affiliated Group" has the same meaning as under the Tax-
Qualified Plans.
Section 2.6. "Board" means the Board of Directors of the Company.
Section 2.7. "Code" means the Internal Revenue Code of 1986, as amended.
Section 2.8. "Committee" means the Employee Welfare Benefits Plan
Committee of the Company or its delegate.
Section 2.9. "Company" means FMC Corporation.
Section 2.10. "Company Stock" means common stock of the Company.
Section 2.11. "Compensation" has the same meaning as the term "Earnings"
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under the Tax-Qualified Thrift Plan; provided that any amounts contributed on
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behalf of a Participant under this Plan or a salary reduction arrangement under
Sections 125 or 401(k) of the Code shall be included in Compensation. Any
Compensation paid or payable to a Participant which is in excess of $150,000 (or
such other amount as may then be in effect under Section 401(a)(17) of the Code)
shall be referred to herein as "Excess Compensation" and shall not be considered
for any purpose under this Plan except as specifically provided in Section 4.1
hereof.
Section 2.12. "Deferral Contributions" means the contributions made on
behalf of a Participant pursuant to Section 4.1 of the Plan.
Section 2.13. "Deferral Contributions Account" means the account
maintained on behalf of each Participant which will represent the amount of the
Deferral Contributions made on behalf of such Participant pursuant to Section
4.1 of the Plan.
Section 2.14. "Effective Date" means September 1, 1997.
Section 2.15. "Employer" means, both collectively and individually as
determined by the context of the applicable provision, the Company and any
Adopting Affiliate.
Section 2.16. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
Section 2.17. "Excess Compensation" has the meaning set forth in Section
2.11 of the Plan.
Section 2.18. "Matching Contributions" means the contributions made on
behalf of a Participant pursuant to Section 5.1 of the Plan.
Section 2.19. "Matching Contributions Account" means the account
maintained on behalf of each Participant which will represent the amount of the
Matching Contributions made on behalf of such Participant pursuant to Section
5.1 of the Plan.
Section 2.20. "Participant" means any eligible employee of the Company who
is participating under the Plan pursuant to Article III.
Section 2.21. "Permitted Investment" means such fund or type of investment
as may be approved by the Committee from time to time for purposes of the Plan.
3
Section 2.22. "Plan" means this "FMC Corporation Non-Qualified Retirement
and Thrift Plan," as amended from time to time.
Section 2.23. "Plan Year" means the calendar year.
Section 2.24. "Supplemental Retirement Benefit" has the meaning set forth
in Section 7.1 of the Plan.
Section 2.25. "Tax-Qualified Plans" means the Tax Qualified Retirement
Plan and the Tax-Qualified Thrift Plan, as amended from time to time.
Section 2.26. "Tax-Qualified Retirement Plan" means the FMC Corporation
Salaried Employees' Retirement Plan, as amended from time to time.
Section 2.27. "Tax-Qualified Thrift Plan" means the FMC Employees' Thrift
and Stock Purchase Plan, as amended from time to time.
Section 2.28. "Year of Service" means, with respect to a Participant, the
Participant's number of calendar months of employment by the Affiliated Group
(including any interruption of employment up to 12 months) divided by 12. A
partial month shall be counted as a whole month, and any fractional year of
service shall be ignored. "Year of Service" shall not include (i) any period in
excess of 12 months for which the Participant does not receive Compensation,
including (without limitation) any leave of absence without pay or (ii) any
other interruption if employment in excess of 12 months.
ARTICLE III
Plan Participation
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Section 3.1. Eligibility. The Committee shall designate each employee
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of the Company who is eligible to participate in this Plan; provided, that only
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those employees of the Company who are in a select group of management or are
highly compensated (within the meaning of Title I of ERISA) may be designated as
eligible to participate in this Plan. The Committee shall not designate any
employee of the Company as eligible to participate in the Plan for a Plan Year
unless such employee: (i) is eligible to participate in one or both of the Tax-
Qualified Plans for such Plan Year; and (ii) is expected to receive Compensation
for such Plan Year under such Tax-Qualified Plan (or Tax-Qualified Plans,
4
as the case may be) in an amount that equals or exceeds the amount determinable
under Section 401(a)(17) of the Code for such Plan Year.
Section 3.2. Participation. Each employee of the Company who has been
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designated by the Committee as eligible to participate in this Plan for a Plan
Year shall become a Participant hereunder by timely executing and filing with
the Committee a deferral election form in accordance with the requirements of
Article IV.
ARTICLE IV
Deferral Contributions
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Section 4.1. Deferral Contributions. Each Participant who has made an
----------------------
election under the Tax-Qualified Thrift Plan to defer a portion of his
Compensation for a Plan Year may elect to defer hereunder an additional amount
for such Plan Year. Such additional amount shall be an amount that could not be
deferred under the Tax-Qualified Thrift Plan because the following exclusion and
limitations would prevent such amounts from being contributed to the Tax-
Qualified Thrift Plan: (i) the exclusion of deferred compensation from
creditable compensation for purposes of computing contributions, (ii) the
limitations set forth in Section 401(a)(17) of the Code and (iii) effective as
of January 1, 1998, the limitations set forth in Section 402(g) of the Code. Any
amounts deferred by a Participant pursuant to this Section 4.1 shall be credited
to such Participant's Deferral Contributions Account within a reasonable period
following the date such amounts would have been contributed to the Tax-Qualified
Thrift Plan if such amounts would have been otherwise allowed thereunder.
Section 4.2. Deferral Contributions Account. The Committee shall
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establish and maintain an account (the "Deferral Contributions Account") with
respect to each Participant who has elected to make Deferral Contributions under
this Article IV. The Participant's Deferral Contributions Account shall be a
bookkeeping account maintained by the Company and shall reflect the amount of
Compensation the Participant has elected to defer under the Plan. The amount of
any deemed investment earnings and losses on the amounts reflected in a
Participant's Deferral Contributions Account shall be credited or charged to his
Deferral Contributions Account in accordance with Article VI.
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ARTICLE V
Matching Contributions
----------------------
Section 5.1. Matching Contributions. For each Plan Year, a matching
----------------------
contribution shall be credited to the Participant's Matching Contributions
Account in an amount equal to the matching contributions that would have been
made with respect to the Deferral Contributions of such Participant if such
Deferral Contributions had been made under the Tax-Qualified Thrift Plan. The
amount of such matching contributions shall be credited to this Plan on such
Participants' behalf as a "Matching Contribution."
Section 5.2. Matching Contributions Account. The Committee shall
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establish and maintain an account (the "Matching Contributions Account") with
respect to each Participant who is entitled to receive Matching Contributions
under this Article V. The Participant's Matching Contributions Account shall be
a bookkeeping account maintained by the Company and shall reflect the amount of
the Matching Contributions credited hereunder on behalf of the Participant. The
amount of any deemed investment earnings and losses on the amounts reflected in
a Participant's Matching Contributions Account shall be credited or charged to
his Matching Contributions Account in accordance with Article VI.
ARTICLE VI
Deemed Earnings on Account Balances
-----------------------------------
Section 6.1.
(a) Permitted Investments. Each Participant may designate from time to
---------------------
time, in such manner as may be satisfactory to the Committee, that all or a
portion of his Deferral Contributions Account be deemed to be invested in one or
more Permitted Investments. Such amounts shall be deemed to be invested as
specified by the Participant either (i) on the day following the later of (A)
the date such Participant makes such designation, or (B) the date such amounts
are credited to the Participant's Accounts, or (ii) on such other dates as may
be reasonably determined by the Committee. All amounts credited to Participants'
Matching Contributions Accounts shall be deemed to be invested in Company Stock.
(b) Receipts. Each Account shall be deemed to receive all interest,
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dividends, earnings and other property which would have been received with
respect to a Permitted Investment (or Company Stock as the case may be) deemed
to be held in such Account if the Company actually owned such Permitted
Investment (or Company Stock as the case may be). Cash deemed received with
respect to a Permitted Investment (or
6
Company Stock) shall be credited to the Account as of the date it would have
been available for reinvestment if the Company actually owned the Permitted
Investment (or Company Stock).
(c) Disposition. Each Participant may elect from time to time, at such
-----------
time and in such manner as may be satisfactory to the Committee, to dispose of
any one or more Permitted Investments deemed to be held in his Account. Such
election shall be exercised in accordance with guidelines established by the
Committee.
(d) Elections. All elections to be made by a Participant pursuant to this
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Article VI shall be made only by such Participant; provided, that if such
--------
Participant dies before his entire Account Balance is distributed pursuant to
the terms of the Plan, or if the Committee determines that such Participant is
legally incompetent or otherwise incapable of managing his own affairs, the
Committee shall have the authority to itself make the elections pursuant to this
Section 6.1 on behalf of such Participant, or designate such Participant's
designated beneficiary, legal representative or some near relative of such
Participant to make the elections pursuant to this Section 6.1 on behalf of such
Participant.
(e) Actual Investment Not Required. The Company need not actually make
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any Permitted Investment. If the Company should from time to time make any
investment similar to a Permitted Investment, such investment shall be solely
for the Company's own account and the Participant shall have no right, title or
interest therein. Accordingly, each Participant is solely an unsecured creditor
of the Company with respect to any amount distributable to him under the Plan.
Section 6.2. Crediting of Deferrals. The Company shall credit all
----------------------
Deferral Contributions to a Participant's Deferral Contributions Account within
a reasonable period following the date such deferred amounts would have been
paid to the Participant if the Participant had not made a deferral election
under Article IV. The Company shall credit all Matching Contributions made on
behalf of a Participant pursuant to Article V to such Participant's Matching
Contributions Account within a reasonable period following the date such amounts
would have been contributed to the Tax-Qualified Thrift Plan if such amounts
would have been otherwise permitted to be contributed thereunder.
Section 6.3. Statement of Accounts. At the end of each Plan Year, each
---------------------
Participant will be furnished a statement showing the value of his Accounts.
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ARTICLE VII
Supplemental Retirement Benefits.
--------------------------------
Section 7.1. Amount of Benefits. If a Participant becomes entitled to
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receive a retirement benefit under the Tax-Qualified Retirement Plan, and such
retirement benefit has been limited because of the exclusion of deferred
compensation from creditable compensation under the Tax-Qualified Retirement
Plan or limited as a result of the maximum compensation limitation imposed by
Section 401(a)(17)(as such exclusion and limitations are incorporated in the
Tax-Qualified Retirement Plan), such Participant shall be entitled to receive
under this Plan the portion of his retirement benefit under the Tax-Qualified
Retirement Plan, determined without regard to the exclusion of deferred
compensation from the definition of creditable compensation thereunder and
without regard to the maximum compensation limitation thereunder, which exceeds
the benefit payable to him under the Tax-Qualified Retirement Plan after
applying such exclusion and maximum compensation limitations. Such benefit
under this Plan shall be referred to hereinafter as a Participant's
"Supplemental Retirement Benefit."
Section 7.2. No Supplemental Retirement Benefit Account.
------------------------------------------
The amount of a Participant's Supplemental Retirement Benefit, if any, shall be
determined at the time such Participant becomes entitled to receive a retirement
benefit under the Tax-Qualified Retirement Plan, or such other time as the
Committee shall determine in its sole discretion. The Company shall not be
required to segregate on its books or otherwise any amount to be used for
payment of Supplemental Retirement Benefits under this Plan and Supplemental
Retirement Benefits shall not be credited to any Participant's Accounts, or
otherwise deemed invested or credited with deemed earnings.
ARTICLE VIII
Establishment of Trust
----------------------
Section 8.1. Establishment of Trust. The Company may, in its sole
----------------------
discretion, establish a grantor trust (as described in Section 671 of the Code)
for the purpose of accumulating assets to provide for the obligations hereunder.
The assets and income of such trust shall be subject to the claims of the
general creditors of an Employer hereunder, but only to the extent that such
assets and income are attributable to the contributions of that individual
Employer. The establishment of such a trust shall not affect the Employers'
liability to pay benefits hereunder except that any such liability shall be
offset by any payments actually made to a Participant under such a trust. In
the event such a trust is established, the amount to be contributed thereto
shall be determined by the Company and the investment of such assets shall be
made in accordance with the trust document.
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Section 8.2. Status of Trust. Participants shall have no direct or secured
---------------
claim in any asset of the trust or in specific assets of their Employer and will
have the status of general unsecured creditors of their Employer for any amounts
due under this Plan. The assets and income of the trust will be subject to the
claims of an Employer's creditors, but only to the extent that such assets and
income are attributable to the contributions of that individual Employer.
ARTICLE IX
Distribution of Account Balances
--------------------------------
Section 9.1. Distribution of Accounts. Each Participant shall at all
------------------------
times have a one hundred percent (100%) vested and nonforfeitable interest in
his Deferral Contributions Account and shall have a vested and nonforfeitable
interest in his Matching Contributions Account on the first day following
completion of a given Year of Service in accordance with the following schedule:
Years of Service
Percentage of Matching Contributions
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Account Vested
--------------
Less than 2
0%
2 but less than 3
20%
3 but less than 4
40%
4 but less than 5
60%
5
100%
With respect to each Participant who, as of the Effective date, is an employee
of the Company or an Adopting Affiliate, such Participant's Accounts shall be
paid to him (or in the event of his death, to his beneficiary) in cash in a
single lump sum on the last day of the sixth (6th) calendar month following the
calendar month in which occurs such Participant's termination of employment with
the Company and all Adopting Affiliates. Notwithstanding the immediately
preceding sentence, such a Participant may make an irrevocable election, subject
to the Committee's approval, to have his Accounts paid to him (or in the event
of his death, to his beneficiary) in any distribution form permitted under the
Tax-Qualified Thrift Plan at any time after the last day of the sixth (6th)
calendar month following the
9
calendar month in which occurs the Participant's termination of employment, but
not later than ninety (90) days after the date of his death. Such election must
be made no later than the last day of the first calendar month following the
calendar month in which occurs such Participant's termination of employment with
the Company and all Adopting Affiliates. Notwithstanding anything in this
Article IX to the contrary, the Committee may establish a minimum amount of any
installment payment to be made under the Plan.
Section 9.2. Emergency Payments. A Participant may from time to time
------------------
request, in such manner as may be satisfactory to the Committee, that the
Committee authorize an emergency payment to such Participant of amounts credited
to his Accounts. Any such distribution shall be for the sole purpose of enabling
such Participant to meet his immediate and heavy financial needs arising as a
result of personal injury, sickness, disability, substantial damage to real or
personal property, or other unforeseen and extraordinary emergency of such
Participant or a member of his immediate family. Children's educational expenses
and the purchase and improvement of a residence are specifically excluded as
events deemed to constitute an emergency for purposes of this Section 9.2. If an
emergency payment is authorized, the Committee shall distribute to such
Participant, within a reasonable time, an amount determined by the Committee to
be sufficient to alleviate the financial hardship, but not in excess of the
Participant's Account Balance as of such date. In determining the amount to be
distributed, the Committee may take into account amounts reasonably available
from other resources of the Participant.
Section 9.3. Distribution of Supplemental Retirement Benefits. A
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Participant's Supplemental Retirement Benefit shall be paid to him (or in the
event of his death, to his beneficiary) at the same time and in the same manner
as payment of his retirement benefit under the Tax-Qualified Retirement Plan is
made.
Section 9.4. Distribution of Accounts of Certain Former Employees. The
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Accounts of each Participant who terminated employment with the Company and all
Adopting Affiliates prior to the Effective Date shall be paid to him (or in the
event of his death, to his beneficiary) in cash in a single lump sum on April 1,
1998. Notwithstanding the immediately preceding sentence, each such Participant
who terminated employment prior to the Effective Date may make an irrevocable
election prior to January 1, 1998, to have his Accounts paid to him (or in the
event of his death, to his beneficiary) in any distribution form permitted under
the Tax-Qualified Thrift Plan at any time after April 1, 1998, but no later than
ninety (90) days after the date of his death;
10
provided, that to the extent any such Participant filed an approved irrevocable
- --------
election with the Committee prior to the Effective Date to have his Accounts
paid to him (or in the event of his death, to his beneficiary) at a time or in a
manner other than as provided in this Section 9.4, his Accounts shall be
distributed in accordance with such election. Notwithstanding anything in this
Article IX to the contrary, the Committee may establish a minimum amount of any
installment payment to be made under the Plan.
Section 9.5. Involuntary Distributions. Notwithstanding the foregoing
-------------------------
provisions of this Article IX, the Committee may on its own initiative authorize
the Company to distribute to any Participant (or to a designated beneficiary in
the event of the Participant's death) all or any portion of the Participant's
Account Balance or Supplemental Retirement Benefit if there is a change in tax
law, a published ruling or similar announcement issued by the Internal Revenue
Service, a regulation issued by the Secretary of the Treasury, a decision by a
court of competent jurisdiction involving a Participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by the
Internal Revenue Service and involves a Participant, and the Committee
determines that a Participant has or will recognize income for federal income
tax purposes with respect to amounts deferred under this Plan prior to the time
such amounts are paid to the Participant.
Section 9.6. Forfeitures. The extent to which a Participant's Matching
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Contributions Account is not fully vested pursuant to Section 9.1 above shall be
a "forfeiture." Except as provided below, a forfeiture shall be treated in the
same manner as the Participant's other Accounts under the Plan until the earlier
of (i) the Accounting Date on which the Participant with respect to whom the
forfeiture arose incurs a one (1) year break in service (as defined in the Tax-
Qualified Thrift Plan), or (ii) the Accounting Date as of which the Participant
receives a total distribution of his Accounts under the Plan. Forfeitures shall
be applied to reduce the obligations of the Participant's Employer to this Plan
for the Plan Year coincident with or next following the date the forfeiture
arose.
Section 9.7. Designation of Beneficiaries. Each Participant may name any
----------------------------
person (who may be named concurrently, contingently or successively) to whom the
Participant's Account Balance under the Plan is to be paid if the Participant
dies before such Account Balance is fully distributed. Each such beneficiary
designation will revoke all prior designations by the Participant, shall not
require the consent of any previously named beneficiary, shall be in a form
either prescribed by or acceptable to the Committee and will be effective only
when filed with the Committee during the Participant's lifetime. If a
Participant fails to designate a beneficiary before his death, as provided
above, or if the
11
beneficiary designated by a Participant dies before the date of the
Participant's death or before complete payment of the Participant's Account
Balance, the Committee, in its discretion, may pay the Participant's Account
Balance to either (i) one or more of the Participant's relatives by blood,
adoption or marriage and in such proportions as the Committee determines, or
(ii) the legal representative or representatives of the estate of the last to
die of the Participant and his designated beneficiary. A Participant's
beneficiary for purposes of the Tax-Qualified Retirement Plan shall be the
beneficiary of his Supplemental Retirement Benefit.
ARTICLE X
Amendment and Termination
-------------------------
Section 10.1. Amendment. The Company shall have the right to amend the
---------
Plan by action of the Board (or a duly appointed delegate thereof) from time to
time, except that no such amendment shall, without the consent of the
Participant to whom deferred compensation has been credited to any Account under
this Plan, adversely affect the right of the Participant (or his beneficiary) to
receive payments of such deferred compensation under the terms of this Plan.
Section 10.2. Plan Termination. The Plan may be terminated with respect to
----------------
the Company or any Employer at any time by action in its sole discretion. The
Plan shall be automatically terminated (i) with respect to any Employer upon the
termination of the Tax-Qualified Plans with respect to such Employer pursuant to
the applicable provisions of the Tax-Qualified Plans; and (ii) with respect to
any Adopting Affiliate upon such Adopting Affiliate's withdrawal from
participation in the Tax-Qualified Plans pursuant to the applicable provisions
of the Tax-Qualified Plans. Notwithstanding the foregoing, no termination of
this Plan shall alter the right of a Participant (or his beneficiary) to
payments of deferred compensation previously credited to such Participant's
Accounts or to payments of Supplemental Retirement Benefits accrued under the
Plan.
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ARTICLE XI
General Provisions
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Section 11.1. Non-Alienation of Benefits. A Participant's rights to the
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amounts credited to his Accounts and to any Supplemental Retirement Benefit
under the Plan shall not be grantable, transferable, pledgeable or otherwise
assignable, in whole or in part, by the voluntary or involuntary acts of any
person, or by operation of law, and shall not be liable or taken for any
obligation of such person. Any such attempted grant, transfer, pledge or
assignment shall be null and void and without any legal effect.
Section 11.2. Withholding for Taxes. Notwithstanding anything contained
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in this Plan to the contrary, each Employer shall withhold from any distribution
made under the Plan such amount or amounts as may be required for purposes of
complying with the tax withholding provisions of the Code or any State income
tax act for purposes of paying any estate, inheritance or other tax attributable
to any amounts distributable or creditable under the Plan.
Section 11.3. Immunity of Committee Members. The members of the
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Committee may rely upon any information, report or opinion supplied to them by
any officer of an Employer or any legal counsel, independent public accountant
or actuary, and shall be fully protected in relying upon any such information,
report or opinion. No member of the Committee shall have any liability to the
Company or any Participant, former Participant, designated beneficiary, person
claiming under or through any Participant or designated beneficiary or other
person interested or concerned in connection with any decision made by such
member of the Committee pursuant to the Plan which was based upon any such
information, report or opinion if such member of the Committee relied thereon in
good faith.
Section 11.4. Plan Not to Affect Employment Relationship. Neither the
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adoption of the Plan nor its operation shall in any way affect the right and
power of an Employer to dismiss or otherwise terminate the employment or change
the terms of the employment or amount of compensation of any Participant at any
time for any reason or without cause. By accepting any payment under this Plan,
each Participant, former Participant, designated beneficiary and each person
claiming under or through such person, shall be conclusively bound by any action
or decision taken or made under the Plan by the Committee.
Section 11.5. Action by the Employers.
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Any action required or permitted of an Employer under the Plan shall be by
resolution of its Board of Directors or by a duly authorized committee of its
Board of Directors, or by a person or persons authorized by resolution of its
Board of Directors or such Committee.
Section 11.6. Effect on Other Employee Benefit Plans. Any compensation
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deferred or accrued under this Plan (including any Supplemental Retirement
Benefit), and any amount credited to a Participant's Accounts under this Plan,
shall not be included in the Participant's compensation or earnings for purposes
of computing benefits under any other employee benefit plan maintained or
contributed to by the Employer except as may otherwise be required under the
terms of such employee benefit plans or applicable law.
Section 11.7. Assumption of Employer Liability. The obligations of an
--------------------------------
Employer under the Plan may be assumed by any other Employer with the consent of
the board of directors of the Company (or a duly appointed delegate thereof), in
which case such Employer shall be obligated to satisfy all of the previous
Employer's obligations under the Plan and the previous Employer shall be
released from any continuing obligation under the Plan. At the Company's
request, a Participant or designated beneficiary shall sign such documents as
the Company may require in order to effectuate the purposes of this Section.
Section 11.8. Notices. Any notice required to be given by the Company or
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the Committee hereunder shall be in writing and shall be delivered in person or
by registered mail, return receipt requested. Any notice given by registered
mail shall be deemed to have been given upon the date of delivery, correctly
addressed to the last known address of the person to whom such notice is to be
given.
Section 11.9. Gender and Number; Headings. Wherever any words are used
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herein in the masculine gender they shall be construed as though they were also
used in the feminine gender in all cases where they would so apply; and wherever
any words are used herein in the singular form they shall be construed as though
they were also used in the plural form in all cases where they would so apply.
Headings of sections and subsections of the Plan are inserted for convenience of
reference and are not part of the Plan and are not to be considered in the
construction thereof.
Section 11.10. Controlling Law. The Plan shall be construed with respect
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to each Employer in accordance with the internal laws of the State where the
principal place of business of such Employer is located, to the extent not
preempted by any applicable federal law.
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Section 11.11. Successors. The Plan is binding on all persons entitled
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to benefits hereunder and their respective heirs and legal representatives, on
the Committee and its successor and on any Employer and its successor, whether
by way of merger, consolidation, purchase or otherwise.
Section 11.12. Severability. If any provision of the Plan shall be held
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held illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions of the Plan, and the Plan shall be enforced as
if the invalid provisions had never been set forth therein.
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