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Exhibit 10.33
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BIOGEN, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
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July 1997
Execution Copy
SECTION 1.
PURPOSE AND EFFECTIVE DATE
The purpose of this plan is to provide certain key executives of Biogen (or its
subsidiaries) with additional retirement income by supplementing the retirement
benefits provided under the Biogen Retirement Plan. In addition, this plan
provides benefits to participants whose benefit under the Biogen Retirement Plan
is affected by Internal Revenue Code limits on the amount of compensation that
may be taken into account under the Retirement Plan for any plan year (Code
Section 401(a)(17)) or on the amount of benefits that may be provided from the
Retirement Plan (Code Section 415). The effective date of this plan is January
1, 1991. The plan was amended and restated effective April 1, 1996 in
conjunction with the amendment and restatement of the Biogen Retirement Plan.
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SECTION 2.
DEFINITIONS
This section contains definitions of terms used in the plan. Where the context
so requires, the masculine includes the feminine, the singular includes the
plural, and the plural includes the singular.
2.1 APPLICABLE COMPENSATION has the same meaning as in the Retirement Plan,
without regard, however, to either (a) any dollar limitation on applicable
compensation that may be imposed under the Retirement Plan, or (b) any
amount excluded from a participant's applicable compensation under the
Retirement Plan by reason of the participant's reducing his salary and/or
bonus under any non-qualified deferred compensation plan or arrangement
maintained by Biogen (or a subsidiary).
2.2 BIOGEN means Biogen, Inc., a Massachusetts corporation, or any successor to
all or the major portion of its assets or business which assumes the
obligations of Biogen, Inc. under this plan.
2.3 BOARD means the Board of Directors of Biogen.
2.4 COMMITTEE means the Retirement Plan committee constituted under the
Retirement Plan.
2.5 PARTICIPANT means an employee of Biogen (or a subsidiary) who has been
designated a participant in this plan in accordance with Section 3 hereof.
2.6 PLAN means the Biogen, Inc. Supplemental Executive Retirement Plan, as set
forth in this plan instrument, and as it may be amended from time to time.
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2.7 PLAN YEAR means the 12-month period beginning each January 1 during the
continuation of the plan.
2.8 RETIREMENT PLAN means the Biogen Retirement Plan, as amended from time to
time. Any term defined in the Biogen Retirement Plan will have the same
meaning when used in this plan unless otherwise defined herein.
2.9 SINGLE SUM CONVERSION BASIS means the assumptions set forth in Section
2.1(b) of the Retirement Plan.
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SECTION 3.
PARTICIPATION
3.1 PARTICIPATION IN SUPPLEMENTAL PENSION FORMULA. Each person
listed on Appendix A is a participant in the supplemental
pension formula under Section 4.1 as of January 1, 1991.
3.2 PARTICIPATION IN EXCESS BENEFIT FORMULAS. Each participant in the
Retirement Plan (other than a person listed on Appendix A) (a) whose
applicable compensation for any plan year exceeds the dollar limitation on
applicable compensation imposed under Code Section 401(a)(17) for such plan
year, (b) whose benefit under the Retirement Plan is reduced upon his
retirement or other termination of employment by the limitations imposed
under Code Section 415, or (c) who has reduced his salary and/or bonus
under any non-qualified deferred compensation plan or arrangement
maintained by Biogen (or a subsidiary) will be a participant in the excess
benefit formula under Section 4.2.
3.3 END OF PARTICIPATION. Except as specifically provided in an appendix, an
employee's active participation in this plan accruing additional benefits
under the applicable provisions of the plan will end when his participation
in the Retirement Plan ends.
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SECTION 4.
BENEFIT FORMULAS
4.1 SUPPLEMENTAL PENSION FORMULA.
(a) For each plan year during the existence of this plan, a participant in
the supplemental pension formula will be credited with a supplemental
pension amount equal to 1 1/2% of his applicable compensation during
such year up to the Social Security taxable wage base for such year
(prorated for any partial year of employment as an employee of Biogen
(or a U.S. subsidiary)), plus 2 1/2% of his applicable compensation
during such year above the Social Security taxable wage base for such
year (as so prorated). In addition, a participant will be credited with
a supplemental pension amount in accordance with the preceding sentence
for 1989 and 1990 provided such individual was an employee of Biogen
(or subsidiary) during such year.
(b) A participant's accrued supplemental pension benefit hereunder as of
any date of reference will be the sum of the supplemental pension
amounts he is credited with under the preceding paragraph.
4.2 EXCESS BENEFIT FORMULAS. A participant's accrued excess benefit under this
section will be the benefit he would have earned under the accrued benefit
formula in Section 6.1(a) of the Retirement Plan if (a) his applicable
compensation taken into account had never been limited under Code Section
401(a)(17), (b) the limitations on benefits imposed under Code Section 415
(as specified in Sections 12.1 to 12.3 of the Retirement Plan) were
disregarded, and (c) he had never reduced his salary and/or bonus under a
non-qualified deferred compensation plan or arrangement maintained by
Biogen (or a subsidiary).
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4.3 VESTED INTEREST. A participant who terminates employment before his normal
retirement date will have the same vested percentage in his supplemental
pension benefit or excess benefit under this plan that he has in his
accrued benefit under the Retirement Plan.
4.4 ADDITIONAL SPECIAL BENEFITS. In addition to any supplemental pension
benefits, excess benefits or other benefits provided under the terms of the
plan, a participant who is specified in an appendix to this plan will be
entitled to benefits calculated in accordance with the provisions of such
appendix.
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SECTION 5.
PROVISIONS ON PAYMENT OF BENEFITS
5.1 SUPPLEMENTAL PENSION BENEFIT AND EXCESS BENEFITS. Supplemental pension
benefit amounts or excess benefit amounts as calculated under the formulas
in Sections 4.1 and 4.2 above are payable as an annual pension beginning on
the participant's normal retirement date in the form of an annuity for the
life of the participant only. If a participant's supplemental pension
benefits or excess benefits hereunder are actually paid beginning on an
earlier date or in a different form in accordance with Section 5.2, the
amount will be adjusted as provided in Section 5.2.
5.2 FORM AND TIME OF BENEFIT PAYMENTS. A participant's vested supplemental
pension benefit or excess benefit under Section 4.1 or Section 4.2 will be
paid in the same form and beginning on the same date that his benefit under
the Retirement Plan is payable. Notwithstanding the preceding sentence, if
a participant elects a lump sum form of payment, such election shall be
made prior to the date the participant actually retires, and will be
subject to the approval of the committee.
(a) ANNUITY OPTIONS. If the participant's supplemental pension benefit or
excess benefit is payable in any form other than a lump sum or a life
annuity, the actuarial factors used to convert his supplemental pension
benefit or excess benefit amount from a life annuity to such other form
of payment will be the same as the factors used for such purpose in the
Retirement Plan.
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(b) LUMP SUM OPTION.
(i) Supplemental pension: If a participant's supplemental pension
under Section 4.1(b) is payable as a lump sum, the amount shall
be the supplemental pension amount under Section 4.1 converted to
a single sum benefit using the assumptions set forth in Section
2.9.
(ii) Excess pension: If a participant's excess benefit under Section
4.2 is payable as a lump sum, the amount will be the lump sum
benefit he would have received under the Retirement Plan without
regard to Internal Revenue Code Section 401(a)(17) and
regulations thereunder, Internal Revenue Code Section 415 and
regulations thereunder and any reductions of his salary and/or
his bonus under a non-qualified deferred compensation plan or
arrangement maintained by Biogen (or a subsidiary).
(c) EARLY RETIREMENT.
(i) Supplemental pension: If the participant's supplemental pension
benefit is payable as an annuity starting before his normal
retirement date, his benefit will equal the supplemental pension
amount he is credited with under Section 4.1, reduced by 5/9ths
of 1% per month for each of the first 60 months, and by 5/18ths
of 1% per month for each additional month, that the start of
payments precedes his normal retirement date.
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(ii) Excess pension: If the participant's excess benefit is payable as
an annuity starting before his normal retirement date, his
benefit shall equal the early retirement annuity amount he would
have received under the Retirement Plan without regard to
Internal Revenue Code Sections 401(a)(17) and regulations
thereunder, Internal Revenue Code Section 415 and regulations
thereunder, and any reductions in his salary and/or bonus under
any non-qualified deferred compensation plan or arrangement
maintained by Biogen (or a subsidiary).
5.3 REDUCTION FOR RETIREMENT PLAN BENEFITS. Notwithstanding any other provision
of this plan, the amount payable to a participant under this plan (as
calculated under the applicable provisions of the plan) will be reduced by
the amount actually paid to such participant as a benefit from the
Retirement Plan. If Retirement Plan benefits to a participant are paid in a
different form or commence at a different time compared to benefits under
this plan, for purposes of calculating the reduction for Retirement Plan
benefits under the preceding sentence, the Retirement Plan benefit amount
will be converted to an amount payable in the same form and commencing at
the same time as the participant's benefit under this plan, with such
conversion performed in accordance with the actuarial assumptions specified
in the Retirement Plan or, if applicable, in Section 2.9.
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SECTION 6.
DEATH BENEFITS
6.1 APPLICATION OF THIS SECTION. This section specifies the benefits payable
upon the death of a participant, either before or after the date his
benefit payments hereunder begin. Except as specified in this section, no
benefits are payable upon the death of a participant.
6.2 PRERETIREMENT DEATH BENEFIT.
(a) ELIGIBILITY. If a participant in this plan dies after the date when he
has a vested interest hereunder but before the date when his benefit
payments begin, his beneficiary will receive the preretirement death
benefit described under this section.
(b) PAYMENT. Preretirement death benefit payments will be made or will
begin on the same date that payments of the Retirement Plan's
preretirement death benefit under Section 9.2 of the Retirement Plan is
made or begins.
(c) AMOUNT. The amount of each monthly payment to the beneficiary will be
the amount the participant would have received on the payment starting
date (had he survived to such date), based upon his vested accrued
supplemental pension benefit or excess benefit hereunder as of the
earlier of his date of death or his date of retirement or other
termination of employment, with actuarial reduction if applicable, for
payments starting before the participant's normal retirement date.
Notwithstanding the preceding sentence, for purposes of converting a
participant's Retirement Plan cash balance account to a life annuity,
the applicable factor shall be based on the attained age of the
beneficiary as of the date payments begin.
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(d) If the preretirement death benefit under the Retirement Plan is payable
as a commuted single sum payment, the beneficiary's benefit under this
section will also be paid as a commuted single sum payment. Such single
sum payment shall equal the lump sum benefit the participant would have
received under Section 5.2(b) (had he survived to such date and elected
such form of payment).
(e) OFFSET FOR RETIREMENT PLAN BENEFITS. Notwithstanding any other
provision of this Section 6.2, the amount payable to a beneficiary
under this section (as calculated under the applicable provisions of
the plan) will be reduced by the amount payable to such beneficiary as
a preretirement death benefit from the Retirement Plan.
6.3 DEATH AFTER BENEFIT PAYMENTS BEGIN. If a participant dies while receiving
benefit payments hereunder, his surviving spouse, contingent annuitant or
beneficiary will receive the benefit, if any, payable under the form of
payment in effect for such participant.
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SECTION 7.
DISABILITY
7.1 A participant who suffers a total and permanent disability for purposes of
the Retirement Plan will continue to participate in this plan during his
period of covered disability (as defined in the Retirement Plan). Such a
participant will continue to accrue supplemental pension benefits or excess
benefits under this plan in accordance with the applicable provisions of
Section 4 as if such participant had continued to be an active employee of
Biogen (or a subsidiary) during his period of covered disability and as if
he had continued receiving applicable compensation during his period of
covered disability at the same rate as his rate of applicable compensation
in effect immediately before the onset of his disability and the Social
Security taxable wage base had remained at the same level as in effect for
the year when his disability began. The accrual of additional supplemental
pension benefits or excess benefits under the preceding sentence will end
when his period of covered disability ends in accordance with the terms of
the Retirement Plan.
7.2 If a participant dies while disabled, his beneficiary will receive the
pre-retirement death benefit determined under Section 6.2.
7.3 A participant may not receive benefits under this plan at any time when he
is receiving disability income benefits under any long-term disability
income plan maintained by Biogen.
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SECTION 8.
BENEFITS NOT CURRENTLY FUNDED
8.1 Nothing in this plan will be construed to create a trust or to obligate
Biogen (or any subsidiary) to segregate a fund, purchase an insurance
contract, or in any other way currently to fund the future payment of any
benefits hereunder, nor will anything herein be construed to give any
participant or any other person rights to any specific assets of Biogen or
of any other employer or entity.
8.2 Notwithstanding Section 8.1, Biogen in its sole discretion may establish a
trust of which it is treated as the owner under Section 671 of the Internal
Revenue Code (a "grantor trust") to provide for the payment of benefits
hereunder, subject to such terms and conditions as Biogen may deem
necessary or advisable to ensure that benefits are not includable, by
reason of the trust, in income of trust beneficiaries before actual
distribution and that the existence of the trust does not cause the plan or
any other arrangement to be considered funded for purposes of Title I of
the Employee Retirement Income Security Act of 1974, as amended.
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SECTION 9.
ADMINISTRATION
The plan will be administered by the committee, which will have full power and
authority to construe, interpret and administer the plan. Decisions of the
committee will be final and binding on all persons. The committee in its
discretion may adopt, amend, and rescind rules and regulations relating to the
administration of the plan.
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SECTION 10.
RIGHTS NON-ASSIGNABLE
No participant, surviving spouse, or any other person will have any right to
assign or otherwise to alienate the right to receive payments under the plan, in
whole or in part.
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SECTION 11.
AMENDMENT OR TERMINATION
Biogen reserves the right at any time by action of the board to terminate this
plan or to amend its provisions in any way. In addition, if the Retirement Plan
is terminated, this plan will automatically terminate also as of the same
effective date. Notwithstanding the foregoing, no termination or amendment of
the plan may reduce the benefits payable under the plan to any person with
respect to a participant whose employment with Biogen (or a subsidiary) was
terminated before such termination or amendment, and no termination or amendment
may reduce the benefits to be paid with respect to a participant on the date of
such termination or amendment below the amount which such participant would have
received if his employment had terminated on the date before such termination or
amendment.
In witness whereof, Biogen, Inc. has caused this instrument to be restated and
effective April 1, 1996 and to be executed as of the ______ day of ______, 1997.
BIOGEN, INC.
By:
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Frank A. Burke, Jr. V.P., Human Resources
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APPENDIX A
LIST OF PARTICIPANTS IN THE SUPPLEMENTAL PENSION FORMULA
The following employees are participants in the supplemental pension formula
under Section 4.1, effective as of January 1, 1991:
Frank A. Burke, Jr.
John W. Catterall
Adrian W. Dawson, M.D.
Frederic A. Eustis, III
James Mullen
Vicki L. Sato, Ph.D.
Michael R. Slater
Alan W. Tuck
James L. Vincent
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APPENDIX B
SPECIAL ADDITIONAL BENEFITS APPLICABLE TO CERTAIN PARTICIPANTS
B.1 Special Additional Benefits for James L. Vincent
(a) APPLICABILITY. This Section B.1 provides for special additional
benefits for James L. Vincent, Chairman and Chief Executive Officer
of Biogen, Inc. ("Vincent"), in order to carry out the provisions of
Paragraph 6 of the letter agreement dated November 21, 1996 from
Biogen, Inc. to Vincent (the "Letter Agreement"). Capitalized or
other terms used in this Section B.1 not otherwise defined by or in
accordance with this plan have the meanings given to them in such
Letter Agreement or in the Employment Agreement referred to in the
first paragraph of the Letter Agreement.
(b) SPECIAL ADDITIONAL BENEFITS. In addition to the benefits payable to
Vincent under the other provisions of this plan, Vincent will be
entitled to benefits hereunder calculated in accordance with the
following provisions:
(i) during the period following the Change Date while Vincent
continues to serve as Chairman (including during any period
while Vincent has a condition or other disability for which
Vincent is entitled to payment of disability benefits for a
"covered disability", as defined in the Biogen Retirement
Plan), Vincent will continue to accrue additional retirement
benefits calculated under the supplemental pension formula in
Section 4.1, treating Vincent's service as Chairman as if it
were full-time service as an eligible employee and treating the
salary and bonus paid to Vincent for service as Chairman (which
during any period of "covered disability" shall be deemed to be
the salary and bonus for the year immediately preceding such
period) as Vincent's "applicable compensation" for purposes of
the supplemental pension formula;
(ii) in the event of a termination of Vincent's employment, before
or after the Change Date, (I) by Biogen, other than for cause
or permanent total disability, (II) by Vincent, under
circumstances constituting Constructive Termination, or (III)
by Vincent after Vincent has reached age 61, in each case
before Vincent has reached age 65, Vincent will receive
additional retirement benefits calculated under the
supplemental pension formula as if Vincent has continued to
serve as Chairman until age 65 and had continued to receive the
same compensation as the annual rate of compensation in effect
for Vincent immediately prior to such termination of
employment; and
(iii) in the event of a termination of Vincent's employment as
Chairman before age 65, under circumstances entitling Vincent
to benefit payments under subparagraph (i) or (ii), Vincent may
thereafter elect to commence receiving such benefit payments
under either clause (I) or (II) below:
(I) in the event Vincent's employment is terminated under
circumstances entitling Vincent to a payment under
paragraph 11(c)(v) of the Letter Agreement, starting on
the earlier of:
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(A) Vincent's normal retirement date, or
(B) the date which follows the date of termination of
Vincent's employment by a number of months equal to
the Severance Multiple (as defined in paragraph
11(c)(v) of the Letter Agreement) multiplied by 12,
(II) in the event Vincent's employment is terminated under
circumstances not entitling Vincent to a payment under
paragraph 11(c)(v) of the Letter Agreement, starting on
the date of such termination.
In any event, benefit payments under either clause (I) or (II)
above will not be reduced for payments received before
Vincent's normal retirement date.
For example, if the Change Date occurs on Vincent's 57th
birthday, and Vincent's employment is terminated by Biogen on
Vincent's 58th birthday under circumstances entitling Vincent
to a payment under paragraph 11(c)(v) of the Letter Agreement,
then Vincent's Severance Multiple would be 5.5 which,
multiplied by 12, results in a period of 66 months. Therefore,
in this example, pursuant to subparagraph (iii)(I)(B), Vincent
could elect to commence receiving benefit payments at the time
Vincent reaches age 63 1/2 (which is 66 months after the
assumed date of termination of Vincent's employment at age 58)
without reduction for payments received before Vincent's normal
retirement date.
The rules governing the presumed form of payment for calculations of
benefits amounts under the foregoing provisions of this paragraph,
and the rules governing the conversion of actual benefits into any
other form of payment elected by Vincent, will be the same rules used
for such purposes under the Biogen Retirement Plan and under the
provisions of this plan.
Vincent's gross retirement benefit amount will be the amount
calculated under this Section B.1 and the actual amount payable to
Vincent under this Section B.1 will be such amount reduced by the
amounts Vincent actually receives under the other provisions of this
plan and the Biogen Retirement Plan.
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