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EXHIBIT 10.4
THE WASHINGTON POST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Effective as of January 1, 1989
Amended and restated effective December 31, 1993
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THE WASHINGTON POST COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Section 1. Purpose. The Washington Post Company Supplemental
Executive Retirement Plan (the "Plan") is an unfunded plan established for the
purpose of providing deferred compensation for a select group of management or
highly compensated employees, as referred to in Sections 201(a)(2), 301(a)(3)
and 401(a)(1) of ERISA, in order to induce employees of outstanding ability to
join or continue in the employ of the Company or an Affiliate of the Company
and to increase their efforts for its welfare by providing them with
supplemental benefits notwithstanding the limitations imposed by the Internal
Revenue Code on retirement and other benefits from tax qualified plans.
This Plan is strictly a voluntary undertaking on the part of
the Company and shall not be deemed to constitute a contract of employment or
part of a contract between the Company and any employee or any employee of an
Affiliate, nor shall it be deemed to give any employee the right to be retained
in the employ of the Company or an Affiliate, as the case be made, or to
interfere with the right of the Company or an Affiliate, as the case may be, to
discharge any employee at any time, nor shall this Plan interfere with the
right of the Company or an Affiliate, as the case may be, to establish the
terms and conditions of employment of any employee.
Benefits under this Plan shall be payable solely from the
general assets of the Company and participants herein shall not be entitled to
look to any source for payment of such benefits other than the general assets
of the Company.
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Section 2. Definitions. As used in this Plan, the following
words shall have the following meanings:
(a) "Actual Salary" means the regular basic compensation
paid or payable to an employee during a calendar year by the Company or an
Affiliate (including tax-deferred contributions, otherwise payable to an
employee, elected by the employee under any Savings Plan), but excluding any
other items of compensation such as (i) bonuses and commissions, (ii) overtime,
(iii) compensation under the terms of the Long-Term Incentive Compensation Plan
of the Company paid during such Plan Year, (iv) Workers' Compensation, (v)
amounts paid by the Company for insurance, retirement or other benefits, (vi)
contributions or payments made by the Company or an Affiliate (other than
tax-deferred contributions elected by the employee) under any Retirement Plan,
any Savings Plan, this Plan or other benefits, or (vii) dismissal or other
payments made to an employee as a result of termination of employment. The
Actual Salary of an employee will include any payment made under any short-term
disability income plan of the Company or an Affiliate.
(b) "Affiliate" means any corporation (other than the
Company) more than 50% of the outstanding stock of which is directly or
indirectly owned by the Company and any unincorporated trade or business which
is under common control with the Company as determined in accordance with
Section 414(c) of the Internal Revenue Code and the regulations issued
thereunder.
(c) "Applicable Percentage" shall have the meaning set
forth in Section 4.
(d) "Compensation" means the Actual Salary of an employee
plus, starting in 1988, bonuses payable under the Annual Incentive Compensation
Plan of the Company
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during a calendar year by the Company or an Affiliate. Bonuses paid under the
Annual Incentive Compensation Plan of the Company will be considered as part of
Compensation for the year in which they are paid to the Employee.
(e) "Committee" means the Compensation Committee of the
Board of Directors of the Company.
(f) "Company" means The Washington Post Company, a
Delaware corporation, and any successors in interest thereto.
(g) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
(h) "Executive Participant" means an employee of the
Company or an Affiliate recommended by the Company's senior management and
designated a participant in this Plan by the Committee, who is within the
category of a select group of management or highly compensated employees as
referred to in Sections 201(a)(2), 301(a)(3) and 401(a)(1) of ERISA for any
Plan Year and who either holds or held the office of a Vice President of the
Company or an Affiliate or any office senior thereto or a position of
equivalent responsibility or importance, during the current Plan Year or the
prior Plan Year, and was covered under the Company's Long-Term Incentive
Compensation Plan or any successor programs. An Executive Participant shall be
designated as being eligible to participate in Section 3 benefits or Section 4
benefits or both as determined in the sole discretion of the Committee.
(i) "415 Limitations" means Retirement Plan and Savings
Plan provisions adopted pursuant to Section 415 of the Internal Revenue Code to
limit (i) annual Retirement Plan benefits pursuant to Section 415(b) thereof,
(ii) annual additions to a Savings Plan
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pursuant to Section 415(c) thereof and (iii) the aggregate of annual Retirement
Plan benefits and additions to Savings Plans pursuant to Section 415(e)
thereof.
(j) "401(a)(17) Limitations" means Retirement Plan and
Savings Plan provisions adopted pursuant to Section 401(a)(17) of the Internal
Revenue Code to limit earnings considered for purposes of computing Retirement
Plan benefits and Savings Plan contributions to $200,000 (or such greater
amount permitted for such year in accordance with regulations promulgated by
the Secretary of the Treasury or his delegate) for each Plan Year ending on or
before December 31, 1993 and then as of January 1, 1994 to $150,000 (or such
greater amount permitted for such year in accordance with regulations
promulgated by the Secretary of the Treasury or his delegate).
(k) "Key Employee Participant" means an employee of the
Company or an Affiliate recommended by the Company's senior management and
designated a participant in this Plan by the Committee, who is within the
category of a select group of management or highly compensated employees as
referred to in Sections 201(a)(2), 301(a)(3) and 401(a)(1) of ERISA for any
Plan Year and who holds or held a key position during the current Plan Year or
the prior Plan Year. A Key Employee Participant shall be designated as being
eligible to participate in Section 3 benefits as determined in the sole
discretion of the Committee.
(l) "Normal Retirement Date" means the first day of the
calendar month following the month in which a person's 65th birthday occurs.
(m) "Participant" means an Executive Participant or a Key
Employee Participant, as applicable.
(n) "Plan Year" means the calendar year.
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(o) "Retirement Plan" means The Washington Post Company
Retirement Plan, Post-Newsweek Stations, Inc. Retirement Plan, Retirement Plan
for Employees of Newsweek, Inc., The Washington Post Washington-Baltimore
Newspaper Guild Retirement Income Plan and such other tax qualified, defined
benefit retirement plans as may be sponsored by the Company or its Affiliates
and designated for inclusion hereunder by the Committee.
(p) "Savings Plan" means The Washington Post Tax Deferral
and Savings Plan, Post-Newsweek Stations, Inc. Tax Deferred Savings Plan, The
Employees' Savings Plan of Newsweek, Inc., The Savings and Retirement Plan of
Affiliated Post Companies and such other tax qualified savings and
profit-sharing plans as may be sponsored by the Company or its Affiliates and
designated for inclusion hereunder by the Committee.
(q) "Service" means the period of employment by the
Company or an Affiliate (excluding service prior to the time an Affiliate
became such and service after the time an Affiliate is no longer such, except
to the extent required by Section 414(a) of the Code and the regulations
promulgated thereunder).
(r) "Supplemental Retirement Benefit" shall have the
meaning set forth in Section 3.
(s) "Supplemental Basic Contributions," "Supplemental
Savings Account" and "Supplemental Savings Award" shall have the meanings set
forth in Section 4.
(t) "Surviving Spouse" means the surviving husband or
wife of an employee of the Company or an Affiliate, who has been married to the
employee throughout the one-year period ending on the date of the death of such
employee.
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(u) "Vesting Year" means each calendar year in which a
Participant or a key Employee Participant has at least 1,000 hours of Service
with the Company or an Affiliate. Service with a predecessor company prior to
becoming an Affiliate will not be counted in calculating Vesting Years.
Section 3. Supplemental Retirement Benefits.
(a) Each designated person, who is an Executive
Participant as of December 3, 1993, or becomes an Executive Participant or a
Key Employee Participant after December 3, 1993, for purposes of being eligible
to receive benefits under this Section and has ten or more Vesting Years upon
termination of Service and to whom benefits become payable under any of the
Retirement Plans, shall be paid a supplemental annual retirement benefit (the
"Supplemental Retirement Benefits") under this Plan equal in amount to the
difference between (i) the aggregate annual benefits paid to such person under
the Retirement Plans and (ii) the aggregate annual benefits that would be
payable to such person under the Retirement Plans if the 415 and 401(a)(17)
Limitations were not contained therein. If such a Participant's Surviving
Spouse is entitled to and is receiving a spouse's benefit under any Retirement
plan, the Surviving Spouse shall be paid a benefit hereunder equal to the
difference between (i) the aggregate spouse's benefits payable to such
Surviving Spouse under the Retirement Plans and (ii) the aggregate spouse's
benefit that would be payable to such Surviving Spouse under the Retirement
Plans if the 415 and 401(a)(17) Limitations were not contained therein. For
purposes of calculating the Supplemental Retirement Benefit or the Surviving
Spouse's benefit hereunder for an Executive Participant or the Surviving Spouse
of an Executive Participant, as the case may be, Compensation rather than
Actual Salary will be used.
(b) The Supplemental Retirement Benefits provided by this
Plan shall be paid to the Participant (or to any beneficiary designated by him
in accordance with the Retirement Plan, or to his Surviving Spouse if eligible
for and receiving a spouse's benefit
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under the Retirement Plan) concurrently with the payment of the benefits
payable under the Retirement Plan in which he was participating at the date of
termination and shall be payable in the same form as such benefits are being
paid thereunder. In the event the Supplemental Retirement Benefit commences
prior to Normal Retirement Date or is payable in a form other than an annuity
for the life of the former employee only, the Supplemental Retirement Benefit
shall be actuarially adjusted in the same manner as are benefits payable under
the Retirement Plan in which he was participating at the time of termination.
The Committee may, however, in its sole discretion direct that the Supplemental
Retirement Benefit payable with respect to a former employee be paid as an
actuarially equivalent single sum payment; provided, that (except for a
distribution to pay taxes as provided in Section 5) no such payment may be made
prior to termination of Service or prior to the date that benefits may become
payable under any of the Retirement Plans, and provided, further, that in
determining actuarial equivalency of a single sum payment in cash, there shall
be used the interest rate which would be used by the Pension Benefit Guaranty
Corporation for the purpose of determining the present value of a single sum
distribution on plan termination and the 1974 George B. Buck Mortality Table,
set forward one year.
Section 4. Supplemental Savings Plan Benefits.
(a) In the event that the Actual Salary of an Executive
Participant designated as eligible to receive benefits under this Section 4 for
1989 or any subsequent Plan Year exceeds the 401(a)(17) Limitations for such
Plan Year, such Executive Participant shall be eligible to make additional
salary reduction contributions under this Plan and receive a Supplemental
Savings Award under this Plan for such Plan Year; provided, that such Executive
Participant is then participating in his employer's Savings Plan and making (i)
the maximum allowable basic, matchable tax-deferred contributions to such
Savings Plan and (ii) the maximum allowable after tax contributions which can
result in a matching employer contribution, as permitted under such Savings
Plan, after taking into account the application of
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the non-discrimination rules of Sections 401(k) and (m) of the Internal Revenue
Code for such Plan Year. In order to compute the amount of such Supplemental
Savings Award, a determination will be made of the dollar amount of
contributions the Executive Participant is able to make to his employer's
Savings Plan which result in matching employer contributions for such Executive
Participant under the terms of such Savings Plan. This dollar amount will then
be expressed as a percentage (the "Applicable Percentage") of the amount of
compensation which can be recognized for purposes of the Savings Plan under
Section 401(a)(17) of the Internal Revenue Code for the then-current Plan Year.
Prior to the beginning of each Plan Year, the Executive Participant will be
provided with the opportunity to elect to irrevocably defer under this Plan the
Applicable Percentage (or any whole lower percentage) of the Executive
Participant's Actual Salary earned in excess of the 401(a)(17) Limitations for
such Plan Year. Such a salary reduction is referred to as a "Supplemental
Basic Contribution." In the event that an Executive Participant elects to make
a Supplemental Basic Contribution under this Plan and, to the extent the
Company is not his employer, his employer forwards on a timely basis such
Supplemental Basic Contribution to the Company, such individual will receive a
Supplemental Savings Award under this Plan in the form of (i) a matching
contribution equal to the product of the Executive Participant's Supplemental
Basic Contribution times the matching employer contribution percentage under
the terms of the applicable Savings Plan and (ii) to the extent such
Participant's employer makes an unmatched contribution to the applicable
Savings Plan on behalf of such Participant, a contribution equal to the
difference between the amount of such unmatched contribution actually made
under such Savings Plan on behalf of such Participant and the amount of such
unmatched contribution such Participant would have received under such Savings
Plan if the 401(a)(17) Limitations had not been in effect (the "Supplemental
Savings Award"). The Supplemental Savings Award for any Plan Year shall be
made as of the first day of the following year or on such other basis as may be
approved by the Committee.
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(b) The amount of an Executive Participant's supplemental
savings plan benefits under this Plan shall be the aggregate amount of the
Supplemental Savings Awards and the Supplemental Basic Contributions together
with interest accrued thereon (the "Supplemental Savings Account"). Interest
shall be credited on the amount of an Executive Participant's Supplemental
Savings Account by crediting the closing account balance at the end of such
Plan Year or on such other basis as may be approved by the Committee with
interest at the rate per annum determined pursuant to the provisions of
paragraph (c) and compounded monthly.
(c) The Compensation Committee shall establish the rate
of interest to be credited as provided in paragraph (b) above. Notwithstanding
the foregoing, in no year shall the rate of interest to be credited be higher
than 10%. In the event a Supplemental Savings Account becomes payable prior to
the end of a calendar year, interest will be allocated on a pro rata basis
(computed on the basis of a year consisting of twelve (12) 30-day months).
(d) Supplemental Savings Awards and the interest thereon
shall be fully vested and nonforfeitable.
(e) No withdrawal of funds in an Executive Participant's
Supplemental Savings Account for hardship or any other reason may be made while
an Executive Participant remains employed by the Company or an Affiliate. The
Supplemental Savings Account shall be paid in cash as soon as practicable
following termination of Service.
(f) An Executive Participant shall designate a
beneficiary to receive the unpaid portion of his Supplemental Savings Account
in the event of his death. The designation shall be made in a writing filed
with the Committee on a form approved by it and signed by the Executive
Participant. If no effective designation of beneficiary shall be on file with
the
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Committee when supplemental savings benefits would otherwise be distributable
to a beneficiary, then such benefits shall be distributed to the Surviving
Spouse of the Executive Participant or, if there is no Surviving Spouse, to the
executor of his will or the administrator of his estate.
Section 5. Funding. Benefits under this Plan shall not be
funded in order that the Plan may be exempt from the provisions of Parts 2, 3
and 4 of Title I of ERISA. The Committee shall maintain records of
Supplemental Savings Accounts and records for the calculation of supplemental
retirement benefits. In the event benefits are hereafter determined to be
taxable for Participants prior to actual receipt thereof, a payment may be made
to such Participants in an amount sufficient to pay such taxes notwithstanding
that the Participant may not then have terminated Service or that the payment
is being made prior to the date that benefits would otherwise be paid under any
of the Retirement Plans. Amounts so paid (i) with respect to supplemental
savings benefits shall reduce the Executive Participant's Supplemental Savings
Account and (ii) with respect to Supplemental Retirement Benefits shall be used
as an offset to the Supplemental Retirement Benefits, if any, thereafter
payable.
Section 6. Administration. This Plan shall be administered
by the Committee. All decisions and interpretations of the Committee shall be
conclusive and binding on the Company, and the Participants. The Plan may be
amended or terminated by the Board of Directors of the Company at any time and
any Participant may have his designation as such terminated by the Committee at
any time; provided, however, that no such amendment or termination or change in
designation shall deprive any Participant of supplemental retirement or savings
benefits accrued to the date of such amendment or termination or modify the
last two sentences of Section 5 in a manner adverse to any Participant.
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Section 7. Loss of Benefits. Notwithstanding any other
section of this Plan, if a Participant is discharged by the Company or an
Affiliate because of conduct that the Participant knew or should have known
was detrimental to legitimate interests of the Company or its Affiliates,
dishonesty, fraud, misappropriation of funds or confidential, secret or
proprietary information belonging to the Company or an Affiliate or commission
of a crime, such Participant's rights to any benefits under this Plan shall be
forfeited; except that such Participant shall be entitled to receive the
aggregate amount of his Supplemental Basic Contributions, without any interest,
in such event.
Section 8. Nonassignability. No Participant, or beneficiary
shall have the right to assign, pledge or otherwise dispose of any benefits
payable to him hereunder nor shall any benefit hereunder be subject to
garnishment, attachment, transfer by operation of law, or any legal process.
Section 9. Limitation of Liability. The Company's sole
obligation under this Plan is to pay the benefits provided for herein and
neither the Participant nor any other person shall have any legal or equitable
right against the Company, an Affiliate, the Boards of Directors thereof, the
Committee or any officer or employee of the Company or an Affiliate other than
the right against the Company to receive such payments from the Company as
provided herein.
Section 10. Use of Masculine and Feminine; Singular and
Plural. Wherever used in this Plan, the masculine gender will include the
feminine gender and the singular will include the plural, unless the context
indicates otherwise.
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