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Exhibit 10.(e)
FLORIDA PROGRESS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
As Amended and Restated, Effective December 17, 1997
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TABLE OF CONTENTS
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ARTICLE I-ESTABLISHMENT AND PURPOSE........................................1
1.1 Restatement .......................................................1
1.2 Purpose ...........................................................1
ARTICLE 2-DEFINITIONS
2.1 Definitions........................................................1
2.2 Gender and Number..................................................8
ARTICLE 3-PARTICIPATION....................................................8
3.1 Eligibility for Participation .....................................8
3.2 Dare of Participation .............................................8
3.31 Duration .........................................................9
3.4 Vesting ...........................................................9
ARTICLE 4-REGULAR BENEFITS ................................................9
4.1 Normal Retirement Benefit .........................................9
4.2 Early Retirement Benefit .........................................10
4.3 Disability Retirement Benefit ....................................11
4.4 Vested Termination Benefit .......................................12
4.5 Change in Control ................................................13
4.6 Form of Benefit Payment ..........................................15
4.7 Survivor Benefit .................................................16
ARTICLE 5-SPECIAL BENEFIT PROVISIONS .....................................17
5.1 General Principles ...............................................17
5.2 Optional Accelerated Distribution ................................17
ARTICLE 6-BENEFICIARY DESIGNATION ........................................17
6.1 Beneficiary Designation ..........................................17
6.2 Amendments .......................................................18
6.3 No Beneficiary Designation-Post-Benefit Commencement .............18
6.4 Community Property ...............................................18
6.5 Effect of Payment ................................................18
ARTICLE 7-FINANCING.......................................................19
7.1 Financing.........................................................19
7.2 No Trust Created .................................................19
7.3 Unsecured Interest................................................19
7.4 Rabbi-Trust.......................................................19
7.5 Divested Subsidiary Employee Participants.........................19
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ARTICLE 8-ADMINISTRATION..................................................19
8.1 Administration ...................................................19
8.2 Administrative Committee .........................................20
8.3 Liability of Committee and Board; Indemnification ................20
8.4 Expenses .........................................................20
8.5 Tax Withholding...................................................20
ARTICLE 9-MISCELLANEOUS ..................................................20
9.1 Nontransferability ...............................................20
9.2 Amendment or Termination..........................................21
9.3 Forfeiture of Benefits............................................21
9.4 Applicable Law ...................................................22
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FLORIDA PROGRESS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated, Effective December 17, 1997
ARTICLE I-ESTABLISHMENT AND PURPOSE
1.1 Restatement
Florida Progress Corporation hereby amends and restates, effective as
of December 17, 1997, an unfunded plan of deferred compensation for
certain officers and other management personnel of the Company and its
subsidiaries and their beneficiaries as described herein, which plan
shall be known as the "Florida Progress Corporation Supplemental
Executive Retirement Plan (the "Plan").
This amendment and restatement is only applicable to active
Participants as of December 17, 1997 and those who enter the Plan
thereafter. For all Participants (including Spouses of such
Participants) who have retired or terminated before December 17, 1997,
the prior document shall govern.
1.2 Purpose
The purpose of this Plan is to provide additional retirement benefits
to a select group of officers and other management personnel with the
goal of helping to attract and retain senior officers and other
management personnel.
ARTICLE 2-DEFINITIONS
2.1 Definitions
Whenever used hereinafter, the following terms shall have the meanings
set forth below:
(a) "ACCRUED BENEFIT" means, at any particular date, a
Participant's Target Benefit, but calculated on the basis of
the number of years and months of Deemed Credited Service of
the Participant and the Final Average Earnings of the
Participant as of such date rather than as of his or her
Normal Retirement Date.
(b) "ACTUARIAL EQUIVALENT" means, with respect to determining the
amount of a benefit of equivalent value to the benefit that
would otherwise have been provided to the Participant,
determined on the basis of the actuarial assumptions in
effect under the Retirement Plan except for the discount or
interest rate which shall be one hundred twenty percent
(120%) of the applicable long-term federal rate as determined
under Section 1274(d) of the Code as of the date such value
is computed.
(c) "ADMINISTRATIVE COMMITTEE" means the Committee responsible
for day to day administration of the Plan pursuant to Article
8.2.
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(d) "BENEFICIARY" means the person or entity entitled under
Article 6 to receive any Plan benefits payable after a
Participant's death.
(e) "BOARD" means the Board of Directors of the Company.
(f) "CALCULATED UNDER THIS PLAN" means a calculation made as
otherwise indicated but without regard to any cost-of-living
adjustments occurring after retirement or other termination
of employment, and calculated as a straight-life annuity
without regard to the actual form of payment under the
Retirement Plan or the Nondiscrimination Plan.
(g) "CHANGE IN CONTROL" shall mean and be deemed to have occurred
if:
(1) Any Person is or becomes the Beneficial Owner (as
that term is defined in Rule 13d-3 under the
Securities Exchange Act of 1934 (the "Exchange
Act")), directly or indirectly, of securities of the
Company (not including in the securities
beneficially owned by such Person any securities
acquired directly from the Company) representing
twenty-five percent (25%) or more of the combined
voting power or the Company's then outstanding
securities; or
(2) During any period of twenty-four (24) consecutive
months (not including any period prior to January 1,
1998), individuals who at the beginning of such
period constitute the Board and any new director
(other than a director designated by a Person who
has entered into an agreement with the Company to
effect a transaction described in clause (1), (3) or
(4) of this definition or any such individual whose
initial assumption of office occurs as a result of
either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents)
whose election by the Board or nomination for
election by the Company's stockholders was approved
by a vote of at least two-thirds (2/3) or the
directors then still in office who either were
directors at the beginning of such period or whose
election or nomination for election was previously
so approved, cease for any reason to constitute a
majority of the Board; or
(3) The shareholders of the Company approve a
reorganization, merger or consolidation, other than
a reorganization, merger or consolidation with
respect to which all or substantially all of the
individuals and entities who were Beneficial Owners,
immediately prior to such reorganization, merger or
consolidation, of the combined voting power of the
Company's then outstanding securities beneficially
own, directly or indirectly, immediately after such
reorganization, merger or consolidation, more than
seventy-five percent (75 %) of the combined voting
power of the securities of the Company resulting
from such reorganization, merger or consolidation in
substantially the same proportions as their
respective ownership, Immediately prior to such
reorganization, merger or consolidation, of the
combined voting power of the Company's securities:
or
(4) The shareholders of the Company approve (i) the sale
or disposition by the Company (other than to a
subsidiary of the Company) of all or substantially
all of the assets of the Company (or any Such sale
or disposition is effected through condemnation
proceedings), or (ii) a complete liquidation or
dissolution of the Company.
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Notwithstanding the foregoing, a Change in Control
shall not include any event, circumstance or
transaction which results from the action (excluding
the Participant's employment activities with the
Company, Florida Power Corporation or any of their
respective subsidiaries) of any Person or group of
Persons which includes, is directly affiliated with
or is wholly or partly controlled by one (1) or more
executive officers of the Company or its
subsidiaries and in which the Participant actively
participates.
(h) "CODE" means the Internal Revenue Code of 1986, as it may be
amended from time to time, or any successor statute.
Reference to a specific section of the Code shall include a
reference to any successor provision.
(i) "COMMITTEE" means the Compensation Committee of the Board.
(j) "COMPANY" means Florida Progress Corporation, or any
successor entity.
(k) "CONTROL DATE" means the date on which Change in Control
occurs.
(l) "CREDITED SERVICE" shall have the same meaning in this Plan
as is found in the Retirement Plan; provided, that if a
Participant incurs a Disability, such Disability terminates,
the Participant returns to work with an Employer and the
Committee determines that such person shall continue as an
active Participant in this Plan upon such return to work,
such Participant's Credited Service shall be increased by the
time he or she had a Disability (but only to the extent such
time is not otherwise included in his or her Credited
Service); and provided further, that if a Participant is
employed by an Employer that is not a participating employer
in the Retirement Plan, "Credited Service" for such
Participant means the number of years and months equal to the
number of years and months of Credited Service the
Participant would have had if his or her employer had been a
participating employer in the Retirement Plan during the
entire time of the Employer's affiliation with the Company.
(m) "DEEMED CREDITED SERVICE" means, with respect to a
Participant, the sum of the following:
(1) Such Participant's Credited Service; plus
(2) With respect to a person who becomes eligible to
participate under Article 3, the additional years
and months of Credited Service, if any, awarded to
the Participant by the Committee. However, in
calculating the Target Percentage, any such
additional years of service granted before December
17, 1997, shall be multiplied by 0.48 before being
added to (1) above.
In awarding Deemed Credited Service under the standards set
forth in this subsection (m), the Committee may establish
conditions on when the additional years shall be considered
to be earned and thus become effective (e.g., only upon the
Participant reaching a specified age or completing a
specified number of years of actual service, only on a
graduated basis pursuant to a schedule approved by the
Committee, etc.); and in any such event, for all purposes of
this Plan, Participant shall be considered at any time only
to have those years of additional service previously awarded
that then have been earned under the conditions established
by the Committee.
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(n) "DISABILITY" means the total and permanent disability of a
Participant by reason of sickness or injury to perform all of
the duties assigned to the Participant by his or her
Employer, with the existence of a Disability to be determined
by the Committee in its sole discretion.
(o) "EARLY RETIREMENT DATE" means the first (1st) day of the
calendar month next following the day on which the
Participant has attained age fifty-five (55).
(p) "EARNINGS" means a Participant's regular basic compensation
(base salary), plus any lump sum pay increases from his or
her Employer, prior to any reduction in compensation pursuant
to a plan established under the authority of Section 125 or
Section 401 (k) of the Code and prior to any reduction for
amounts deferred under a deferred compensation plan or
arrangement. Any amounts deferred under a deferred
compensation plan or arrangement and thus included in
Earnings when earned shall not be included in Earnings when
actually received.
(q) "EMPLOYER" means the Company or any subsidiary thereof.
(r) "FINAL AVERAGE EARNINGS" means the following:
(1) For Grandfathered Participants, on any particular
date, the greater of (a) the sum of (1) the amount
determined by dividing the sum of a Participant's
Earnings in the highest thirty-six (36) consecutive
months out of the last sixty (60) months prior to
the Participant's termination of employment or other
applicable date, by thirty-six (36), plus (2) the
amount determined by dividing the sum of the
Participant's three (3) highest MICP Awards paid or
deferred during the last sixty (60) months prior to
the Participant's termination of employment or other
applicable date by thirty-six (36) or (b) the sum of
(1) the amount determined by dividing the sum of the
highest three (3) calendar years of a Participant's
Earnings, which do not have to be consecutive, by
thirty-six (36), plus (2) the amount determined by
dividing the sum of the Participant's three (3)
highest MICP Awards, which do not have to be
consecutive, throughout the Participant's entire
career, by thirty-six (36). However, in no event
shall the Final Average Earnings of any Participant
decrease after such Participant's Normal Retirement
Date.
(2) For Participants who are not Grandfathered, the sum
of (1) the amount determined by dividing the sum of
a Participant's Earnings in the highest thirty-six
(36) consecutive months out of the last sixty (60)
months prior to the Participant's termination of
employment or other applicable date, by thirty-six
(36), plus (2) the amount determined by dividing the
sum of the Participant's three (3) highest
consecutive MICP Awards paid or deferred during the
last sixty (60) months prior to the Participant's
termination of employment or other applicable date
by thirty-six (36).
Appropriate adjustments will be made in determining Final
Average Earnings (or any Participant who was not in active
service for the sixty (60) months preceding his or her most
recent termination of employment or ocher applicable date.
For Participants with less than thirty-six (36) months of
service, Final Average Earnings shall then be calculated
based on Earnings and MICP Awards for all the months during
which the Participant was in active service.
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(s) "FINAL EARNINGS" means, on any particular date, the sum of
(1) the amount determined by dividing the Participant's
Earnings in the last twelve (12) months, prior to
termination, by twelve (12), plus (2) the amount determined
by dividing the sum of the Participant's three (3) highest
MICP Awards paid or deferred during the last sixty (60)
months prior to the Participant's termination of employment
by thirty-six (36). For Grandfather Participants these
highest MICP Awards do not have to be consecutive; for all
others the awards must be consecutive. In calculating the
highest three (3) MICP Awards for Grandfathered Participants,
the awards shall be the higher of target or actual MICP Award
paid or deferred. Appropriate adjustments will be made in
determining Final Earnings for any Participant who was not in
active service for the sixty (60) months preceding his or her
most recent termination of employment. Final Earnings shall
then be calculated based on MICP Awards for all the months
during which the Participant was in active service; Final
Earnings shall equal the average determined by dividing the
sum of Earnings attributed to the thirty-six (36) consecutive
such months that will produce the highest such average by
thirty-six (36), and for a Participant with fewer than
thirty-six (36) months of service, such average shall be
taken over those months in which he or she was in service. If
the Participant has not earned a MICP Award due to lack of
service, then the Participant's target MICP, as adjusted for
short service shall be used in determining Final Earnings.
(t) "GRANDFATHERED PARTICIPANT" means a Participant of the Plan
on December 17, 1997, or who was approved to become a
Participant of the Plan before December 17, 1997, even if
such individual was not yet an employee of the Employer on
December 17, 1997.
(u) "GRANDFATHERED TARGET AMOUNT" means the monthly normal
retirement income payable to a Participant under Section
4.01(a) of the Retirement Plan and Article IV of the
Nondiscrimination Plan, but calculated under this Plan, and
further calculated on the basis of the number of years and
months of Deemed Credited Service (without regard to the
actual number of years and months of Credited Service and not
to exceed thirty-five (35) years) of the Participant and the
Final Average Earnings (as defined in this Plan and not as
defined in the Retirement Plan) of the Participant.
(v) "INCENTIVE PLAN" means any annual nonstock management
incentive plan paid in cash or that would have been paid in
cash if not voluntarily deferred by the Participant and
approved by the Committee.
(w) "INVOLUNTARY TERMINATION" shall mean the occurrence (without
the Participant's express written consent) of any one (1) of
the following acts, or failures to act, unless, in the case
of any act or failure to act described in clauses (1), (4) or
(5) below, such act or failure to act is corrected by the
Company prior to the date of termination specified in the
Notice of Termination given by the Participant in respect
thereof not later than six (6) months after the occurrence of
the event that serves as the basis for the Notice of
Termination:
(1) The assignment to the Participant of any duties or
responsibilities inconsistent with the Participant's
position(s) or status (including. without
limitation, offices, titles, and reporting
relationships) as an executive officer of the
Company and/or its primary subsidiaries or a
substantial or a substantial adverse alteration in
the nature of the Participant's authorities, duties,
responsibilities, position(s) below or otherwise:
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(2) A reduction in the Participant's Annual Base Salary
or annual bonus opportunity as in effect on the
Control Date;
(3) The relocation of the Company's principal executive
offices to a location more than thirty (30) miles
from its location on the Control Date or the
Company's requiring the Participant to be based
anywhere other than the Company's principal Florida
executive offices, except for required travel on the
Company's business to an extent substantially
consistent with the Participant's business travel
obligations as of the Control Date;
(4) The failure by the Company or a subsidiary to
continue in effect any pension benefit or deferred
compensation plan in which the Participant
participates immediately prior to any Potential
Change in Control which is material to the
Participant's total compensation, unless an
equitable arrangement (embodied in an ongoing
substitute or alternative plan or arrangement) has
been made with respect to such plan, or the failure
by the Company or subsidiary to continue the
Participant's participation therein (or in such
substitute or alternative plan or arrangement) on a
basis not materially less favorable, both in terms
of the amount or benefits provided and the level of
the Participant's participation relative to other
Participants, as existed at the time of the
Potential Change in Control;
(5) The failure by the Company or a subsidiary to
continue to provide the Participant with health and
welfare benefits substantially similar to those
enjoyed by the Participant under any retirement,
life insurance, medical, health and accident, or
disability or similar plan of the Company or a
subsidiary in which the Participant was
participating at the time of any Potential Change in
Control, the taking of any action by the Company or
a subsidiary which would directly or indirectly
materially reduce any of such benefits or deprive
the Participant of any material fringe benefit
enjoyed by the Participant at the time of the
Potential Change in Control, or the failure by the
Company or a subsidiary to provide the Participant
with the greater number of paid vacation days to
which the Participant is entitled pursuant to the
terms of the Participant's employment agreement or
in accordance with the Company's or a subsidiary's
normal vacation policy, in either case, as in effect
at the time of the Potential Change in Control;
(6) Termination of the Participant by the Company or a
subsidiary.
(x) "MICP AWARD" means an award paid to a Participant under the
Incentive Plan. For all purposes of this Plan, an MICP Award
shall be deemed to be paid at the time and in the amount as
initially provided, without regard to any deferral of payment
in whole or in part, whether the deferral is a voluntary
deferral by the Participant or is mandatory under the terms
of the applicable plan. Any portion of an award that is
deferred and thus included as part of an MICP Award as
initially provided shall not be taken into account when
actually received.
(y) "NONDISCRIMINATION PLAN" means the Florida Progress
Corporation Retirement Benefit Nondiscrimination Plan for
Excess Benefits, as it may be amended from time to time.
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(z) "NORMAL RETIREMENT DATE" means the first (1st) day of the
calendar month next following the day on which the
Participant attains age sixty-five (65).
(aa) "NOTICE OF TERMINATION" means, after a Change in Control, a
notice given by the Participant which shall indicate the
specific termination provisions under 2.1 (w) relied upon and
shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
the Participant's employment under the provision so
indicated. This notice shall be given not less than fifteen
(15) days nor more than sixty (60) days before the
termination date.
(bb) "PARTICIPANT" means any officer or other management employee
of an Employer who meets the eligibility requirements of the
Plan, as set forth in Article 3, to be and become a
Participant, and who continues to meet such requirements.
(cc) "PERSON" shall have the meaning ascribed thereto in Section
3(a)(9) of the Exchange Act, as modified, applied and used in
Sections 13(d) and 14(d) thereof; provided, however, that a
Person shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any of its subsidiaries (in its capacity as such), (iii) an
underwriter temporarily holding securities pursuant to an
offering of such securities, or (iv) a company owned,
directly or indirectly, by the stockholders of the Company in
substantially the same character and proportions as their
ownership of stock of the Company.
(dd) "PLAN" means the Florida Progress Corporation Supplemental
Executive Retirement Plan, as it is set forth herein and as
it may be amended from time to time.
(ee) "POTENTIAL CHANGE IN CONTROL" shall mean and be deemed to
have occurred if:
(1) The Company enters into an agreement, the
consummation of which would result in the occurrence
of a Change in Control;
(2) The Company or any Person publicly announces an
intention to take actions which, if consummated,
would constitute a Change in Control; and/or
(3) Any Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Company
representing fifteen percent (15%) or more of the
combined voting power of the Company's then
outstanding securities, or any person increases such
Person's beneficial ownership of such securities by
ten (10) percentage points or more over the
percentage so owned by such Person on December 31,
1997.
(4) The Executive Committee of the Board adopts a
resolution to the effect that, for purposes of this
Plan, a Potential Change in Control has occurred.
(ff) "RETIREMENT PLAN" means before January 1, 1998 the Employees'
Retirement Plan or Florida Progress Corporation, and after
January 1, 1998 the Retirement Plan for Exempt and Nonexempt
Employees of Florida Progress Corporation, as may be amended
from time to time.
(gg) "SOCIAL SECURITY" means estimated Social Security benefits:
if the Participant's termination of employment occurs before
the Participant attains age fifty-five (55), the
Participant's future earnings are assumed to continue until
his or her Normal Retirement Date at the same rate as they
were
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immediately prior to the termination, and if the
Participant's termination of employment occurs at or after
the time the Participant attains age fifty-five (55), the
Participant's future earnings are assumed to be zero (0).
(hh) "SPOUSE" means the person to whom a Participant is legally
married at the time his or her benefits commence.
(ii) "TARGET AMOUNT" means the product of the Participant's Final
Average Earnings multiplied by the Target Percentage.
(jj) "TARGET BENEFIT" means the greater of the Target Amount or
the Grandfathered Target Amount.
(kk) "TARGET PERCENTAGE" shall be equal to the following:
(1) For Grandfathered Participants, three and three
quarters percent (3.75%) times the Participant's
years and months of Deemed Credited Service, not to
exceed sixty percent (60%), and
(2) For all Participants who are not Grandfathered,
three percent (3%) times the Participant's years and
months of Deemed Credited Service, not to exceed
sixty percent (60%).
(ll) "YEARS OF PARTICIPATION" means the number of twelve (12)
month periods from the date the Participant is designated as
eligible to participate by the Committee under Section 3.1.
2.2 Gender and Number
Except when otherwise indicated by the context, any masculine
terminology when used in the Plan shall also include the feminine
gender, and the definition of any term herein in the singular shall
also include the plural.
ARTICLE 3-PARTICIPATION
3.1 Eligibility for Participation
The Committee shall have the exclusive right to designate which
officers or other management employees of an Employer shall be
eligible to participate in this Plan. Participation shall be limited
to a select group of management or highly compensated employees and is
subject to change by the Committee from time to time.
3.2 Date of Participation
Each retired or active officer or other management employee who was a
Participant in this Plan shall remain as a Participant. Thereafter,
each officer or other management employee who becomes eligible to
participate in this Plan under Section 3.1 shall become a Participant
on such date as may be designated by the Committee.
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3.3 Duration
An officer or other management employee who becomes a Participant
shall continue to be a Participant until the earlier of (a) the date
he or she is no longer employed by an Employer, or (b) the effective
date of a determination by the Committee that he or she shall not
accrue additional benefits under this Plan; provided, in either case,
that if a Participant is then vested in benefits under the Plan, he or
she shall continue as a Participant (even though not accruing
additional benefits) for the purpose of receiving his or her then
accrued vested benefits pursuant to the provisions of this Plan.
3.4 Vesting
All Grandfathered Participants shall be one hundred percent (100%)
vested in their Accrued Benefits. All other Participants shall be
vested based on the Years of Participation as set out below:
YEARS OF PARTICIPATION VESTED PERCENTAGE
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1 BUT LESS THAN 2 20%
2 BUT LESS THAN 3 40
3 BUT LESS THAN 4 60
4 BUT LESS THAN 5 80
5 OR MORE 100
Notwithstanding the foregoing, a Participant shall also become one
hundred percent (100%) vested in his or her Accrued Benefit, even if
the foregoing conditions have not been satisfied, at the time of the
Participant's termination of employment by reason of Disability or
death; the occurrence of a Change in Control; or the termination of
this Plan.
ARTICLE 4-REGULAR BENEFITS
4.1 Normal Retirement Benefit
(a) ELIGIBILITY. A Participant whose employment with his or her
Employer terminates at or after attaining age sixty-five (65)
shall be eligible for a normal retirement benefit under this
Section 4.1.
(b) AMOUNT. A Participant who is eligible for a benefit under
subsection (a) above shall be entitled to receive a monthly
normal retirement benefit for his or her life equal to the
amount by which (1) below exceeds (2) below:
(1) This amount equals the Participant's vested Accrued
Benefit as of the date of his or her retirement,
with no increase for payment beginning after the
Participant's Normal Retirement Date.
(2) This amount equals the sum of (i) the monthly normal
retirement income payable to the Participant under
the Retirement Plan and the Nondiscrimination Plan
(adjusted as provided for in Section 5.1 (c)),
without regard to any post-retirement increases in
such benefit, plus (ii) the monthly amount equal to
Fifty percent (50%) of the Participant's primary
Social Security benefit, without regard to any
subsequent increases in such benefit.
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(c) COMMENCEMENT OF PAYMENT. Monthly normal retirement benefit
payments shall commence on the first (1st) of the month
following the Participant's date of termination and shall
continue to be paid for the life of the Participant.
4.2 Early Retirement Benefit
(a) ELIGIBILITY. A Participant whose employment with his or her
Employer terminates (for reasons other than Normal
Retirement, death or Disability) at or after his or her Early
Retirement Date shall be eligible for an early retirement
benefit under this Section 4.2.
(b) AMOUNT. A Participant who is eligible for a benefit under
subsection (a) above shall be entitled to receive a monthly
early retirement benefit for his or her life equal to the
amount by which (1) below exceeds (2) below:
(1) This amount equals the Participant's vested Accrued
Benefit as of the date of his or her retirement,
reduced for early payment as provided in Section
4.2(c).
(2) This amount equals the sum of (i) the monthly early
retirement income payable to the Participant under
the Retirement Plan and the Nondiscrimination Plan
(adjusted as provided for in Section 5. 1 (c)),
without regard to any post-retirement increases in
such benefit, plus (ii) fifty percent (50%) of the
Participant's monthly primary Social Security
benefit, assuming such payments begin at the
earliest date Social Security is allowed or, if
later, the date of the Participant's early
retirement benefit commencement (without regard to
any subsequent increases in such benefit). For
Grandfathered Participants, the Social Security
offset under this subsection (b)(2)(ii) shall not be
applied until the Participant is eligible for Social
Security, and for all other Participants the offset
shall be made regardless of Participant's
eligibility for Social Security.
(c) Reduction for Early Payment. The amount of the Participant's
Accrued Benefit determined under Section 4.2(b)(1) shall be
reduced to the extent payment of the Participant's early
retirement benefit begins before the Participant's Normal
Retirement Dare. Such reduced amount shall be computed by
multiplying the Participant's Accrued Benefit as so
determined by the factor set forth below based on the
Participant's years and months of age and service at the time
payment begins and the date when the Participant entered the
Plan:
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AGE WHEN FACTOR FOR FACTOR FOR
PAYMENT BEGINS PARTICIPANTS PARTICIPANTS
GRANDFATHERED NOT GRANDFATHERED
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64 1.00 1.00
63 1.00 1.00
62 1.00 1.00
61 1.00 1.00
60 1.00 1.00
59 .97 .95
58 .94 .90
57 .91 .85
56 .88 .80
55 .85 .75
==================== =================== =======================
If the Participant has thirty-five (35) years of actual Credited
Service at termination or retirement, the early reduction factor above
shall be one (1).
(d) COMMENCEMENT OF PAYMENT. Monthly early retirement benefit
payments shall commence on the first (1st) day of the
calendar month following the Participant's Normal Retirement
Date under this Plan unless the Participant elects an
alternative earlier commencement date. Such election must be
made at least six (6) months prior to the elected benefit
commencement date.
4.3 Disability Retirement Benefit
(a) ELIGIBILITY. A Participant whose employment with his or her
Employer terminates due to a Disability prior to his or her
Normal Retirement Date shall be eligible for a disability
retirement benefit under this Section 4.3; provided, however,
that a Participant shall not be entitled to receive and/or to
continue receiving any Disability benefits under this Plan
unless the Committee has determined in its sole discretion
that a Disability exists and continues. To this end, the
Committee may require the Participant to submit to a medical
examination or a series of medical examinations at any time
and from time to time to determine his or her eligibility
and/or continued eligibility for a disability benefit. The
failure of the Participant to submit to any such examination
shall be sufficient grounds for the denial of a disability
benefit and/or the continuation thereof.
(b) AMOUNT. A Participant who is eligible for a benefit under
subsection (a) above shall be entitled to receive a monthly
disability retirement benefit for his or her life (or if his
or her Disability terminates prior to the Participant's
Normal Retirement Date, until his or her Disability
terminates) equal to the amount by which (1) below exceeds
(2) below:
(1) This amount equals the Participant's Final Earnings
as of the date of the termination of his or her
employment by reason of Disability times seventy
percent (70%).
(2) This amount equals the sum of (i) the monthly income
payable to the Participant under the Retirement Plan
and the Nondiscrimination Plan (adjusted as provided
for in Section 5. 1 (c)), without regard to any
post-termination increases in such benefit, plus
(ii) the monthly amount that would be payable to the
Participant under any long-term disability plan
sponsored by his or her Employer if the Participant
had elected the maximum benefit option thereunder
available
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to the Participant, without regard to the actual
election, if any, made by the Participant, plus
(iii) fifty percent (50%) of the monthly amount
payable to the Participant as his or her Social
Security disability benefit if he or she is then
eligible for such a benefit, or if he or she is not
then eligible for a Social Security disability
benefit, fifty percent (50%) of the Participant's
monthly primary Social Security benefit, assuming
such payments begin at the earliest date Social
Security is allowed or, if later, the date of the
Participant's termination of employment by reason of
Disability (without regard to any subsequent
increases in such benefit); provided, however, that
if the Participant is not eligible for a Social
Security benefit, any Social Security offset under
this subsection (b)(2)(iii) shall not be applied
until the Participant becomes eligible for a Social
Security benefit. For purposes of (ii) above, the
maximum benefit option available to a Participant is
the maximum benefit option that may be elected by a
Participant (the seventy percent (70%) option) in
the absence of an adverse determination by the
insurance carrier, or, in the case of such an
adverse determination, is the maximum benefit
allowed by the insurance carrier.
(c) COMMENCEMENT OF PAYMENT. Monthly disability retirement
benefit payments shall commence on the first (1st) day of the
calendar month following the date of the termination of the
Participant's employment by reason of Disability and shall
continue to be paid for the life of the Participant or, if
his or her Disability terminates prior to his or her Normal
Retirement Date, until the Participant's Disability
terminates. If a Participant's Disability continues through
the life of the Participant, the Spouse of such Participant
shall be eligible for a benefit under Section 4.7(a)(1).
(d) TERMINATION OF DISABILITY. If the Participant's Disability
ends before his or her Normal Retirement Date and either the
Participant does not return to work for an Employer, or the
Participant returns to work for an Employer but the Committee
does not determine that such person shall continue as an
active Participant in the Plan upon such return to work, the
Participant shall be entitled to receive an early retirement
benefit under Section 4.2 (if he or she was eligible for such
a benefit on the dare his or her employment terminated by
reason of Disability) or a vested termination benefit under
Section 4.4,and in any such case, the benefit shall be
calculated as of the date the Participant's employment
terminated by reason of Disability. Any early retirement
benefit or vested termination benefit referred EO in the
first sentence of this subsection (d) shall begin on the
first (1st) day of the calendar month immediately following
the later of the Participant's termination (if applicable,
after the Participant's Disability ends) or Normal Retirement
Date. The Participant may elect an earlier commencement
pursuant to Section 4.2(d) or 4.4(c), but in no case shall
benefits commence before the First (1st) day of the calendar
month immediately following the later of the Participant's
termination of employment or fifty-fifth (55th) birthday.
4.4 Vested Termination Benefit
(a) ELIGIBILITY. A Participant whose employment with his or her
Employer terminates at or after the time he or she has a
vested Accrued Benefit under this Article 4, but who is not
otherwise entitled to a benefit under this Article 4, shall
be eligible for a vested termination benefit under this
Section 4.4.
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(b) AMOUNT. A Participant who is eligible for a benefit under
subsection (a) above shall be entitled to receive a monthly
vested termination benefit for his or her life equal to the
amount by which (1) below exceeds (2) below:
(1) This amount equals the Participant's vested Accrued
Benefit as of the date of his or her termination of
employment.
(2) This amount equals the sum of (i) the monthly income
payable to the Participant under the Retirement Plan
and the Nondiscrimination Plan (adjusted as provided
for in Section 5. 1(c)), without regard to any
post-termination increases in such benefit, plus
(ii) fifty percent (50%) of the Participant's
monthly primary Social Security benefit, assuming
such payments begin at the earliest date Social
Security, is allowed or, if later, the date of the
Participant's benefit commencement (without regard
to any subsequent increases in such benefit). For
Grandfathered Participants, the Social Security
offset under this subsection (b)(2)(ii) shall not be
applied until the Participant is eligible for Social
Security, and for all other Participants the offset
shall be made regardless of Participant's
eligibility for Social Security.
(c.) COMMENCEMENT OF PAYMENT. Monthly vested termination benefit
payments shall commence on the first (1st) day of the
calendar month next following the day the Participant attains
his or her Normal Retirement Date or, if the termination of
employment occurs thereafter, on the first (1st) day of the
calendar month next following the date of such termination of
employment, and shall continue to be paid for the life of the
Participant. However, the Participant may elect an
alternative earlier commencement date as long as such
election is made six (6) months prior to the date benefits
commence. Such early payments shall be reduced by the factor
in Section 4.2(c).
4.5 Change in Control
(a) ELIGIBILITY. If any Participant is Involuntarily Terminated
within twenty-four (24) months of a Change in Control, or if
a Grandfathered Participant is Involuntarily Terminated
within thirty-six (36) months of a Change in Control, then
such Participant shall be eligible for a benefit under this
section. Grandfathered Participants who terminate in the
thirteenth (13th) month after consummation of a Change in
Control for any reason, shall also be eligible for a benefit
under this section.
(b) AMOUNT. The amount of the benefit shall be calculated
pursuant to Section 4.2(b) and (c) with the following
adjustments:
(1) The Grandfathered Participant shall be granted Five
(5) additional years of Determined Credited Service,
all others shall be granted three (3) additional
years of Determined Credited Service.
(2) The greater of Final Earnings or Final Average
Earnings shall used in determining the benefit.
(3) The Social Security benefit offset in 4.2(b)(2)(ii)
shall be disregarded and not added to the benefits
in 4.2(b)(2)(i).
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(c) COMMENCEMENT OF PAYMENT. Monthly retirement benefit payments
shall commence on the first (1st) day of the calendar month
next following the day the Participant attains age fifty-five
(55) or, if the termination of employment occurs thereafter,
on the first (Is:) day of the calendar month next following
the date of such termination of employment and shall continue
to be paid for the life of the Participant. However, the
Participant may delay the commencement of benefits under this
section if such election is made at least six (6) months
prior to when such benefits would have commenced without such
election.
(d) ADDITIONAL PAYMENT. A Participant who is eligible for a
benefit under subsection (a) above also shall be entitled to
receive the amount described below to the extent applicable
to payments from this Plan:
(1) Notwithstanding any other provisions of this Plan,
in the event that any payment or benefit received or
to be received by the Participant in connection with
a Change in Control or the termination of the
Participant's employment (whether pursuant to the
terms of this Plan or any other plan, arrangement or
agreement with the Company or any of its
subsidiaries, any Person whose actions result in a
Change in Control or any Person affiliated with the
Company or such Person) (all such payments and
benefits, including the severance payments, being
hereinafter called "Total Payments") would subject
the Participant to the excise tax imposed under
Section 4999 of the Code or any successor section
thereto (the "Excise Tax"), the Company shall pay to
the Participant an additional amount (the "Gross-Up
Payment") such that the net amount retained by the
Participant, after deduction of any Excise Tax on
the Total Payments from this Plan and any federal,
state and local income tax and Excise Tax upon the
payment provided for by this Section 4.5(d) shall be
equal to the payments under Section 4.5(b) of this
Plan. It is anticipated that Participants will
receive Gross-Ups for payment from other sources and
that the Gross-Up under this Plan is only for those
taxes attributed to payments under Section 4.5 of
this Plan.
(2) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the
amount of such Excise Tax, (i) the Total Payments
shall be treated as "parachute payments within the
meaning of Section 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of
Section 280G(b)(1) of the Code shall be treated as
subject to the Excise Tax, unless, in the opinion of
tax counsel selected by the Company's general
counsel and reasonably acceptable to the
Participant, such Total Payments (in whole or in
part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the
Code, or such excess parachute payments (in whole or
in part) represent reasonable compensation for
services actually rendered, within the meaning of
Section 28OG(b)(4)(9) of the Code, in excess of the
Base Amount allocable to such reasonable
compensation, or are otherwise not subject to the
Excise Tax, and (ii) the value of any noncash
benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in
accordance with the principles of Sections
280G(d)(3) and (4) of the Code. For Purposes of
determining the amount of the Gross-Up Payment, the
Participant shall be deemed to pay federal income
taxes at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up
Payment is to be made and applicable state and local
income taxes at the highest marginal rate of
taxation, net of the maximum reduction in federal
income taxes which could be obtained from
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deduction of such state and local taxes. The
Gross-Up, if any, that is due as a result of such
determination shall be paid to the Participant in
cash at the later of January 1 of the year in which
the Excise Tax will be payable, or within thirty
(30) days of such computation.
(3) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into
account hereunder at the time of determination, the
Participant shall repay to the Company, at the time
that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up
Payment attributable to such reduction plus interest
on the amount of such repayment at the rate provided
in Section 1274(b)(2)(B) of the Code. In the event
that the Excise Tax is determined to exceed the
amount taken into account hereunder at the time of
determination (including by reason of any payment
the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest, penalties
or additions payable by the Participant with respect
to such excess) at the time that the amount of such
excess is finally determined. The Participant and
the Company shall each reasonably cooperate with the
other in connection with any administrative or
judicial proceedings concerning the existence or
amount of any such subsequent liability for Excise
Tax with respect to the Total Payments.
4.6 Form of Benefit Payment
The supplemental retirement benefit under Sections 4.1, 4.2. 4.4 and
4.5(b) shall be paid in the Basic Form provided below unless the
Participant elects an alternative form of benefit payment pursuant to
the rules and procedures established by the Administrative Committee.
Any alternative form shall be the actuarial equivalent of the Basic
Form of benefit payment. The Basic and alternative forms of payment
are as follows:
(a) BASIC FORM OF BENEFIT PAYMENT. For Participants who are
legally married on the date benefits commence, the basic form
("Basic Form") shall be a fifty percent (50%) Joint and
Survivor Annuity. For all other Participants, the Basic Form
shall be a Life Annuity and the only alternative form
available to such Participants shall be the Ten (10) Year
Certain and Life.
(b) ALTERNATIVE FORMS OF BENEFIT PAYMENT. For Participants who
are legally married on the date benefits commence, the
alternative forms are as follows:
(1) Sixty-six and two-thirds percent (66-2/3%) Joint
and Survivor.
(2) Seventy-five percent (75%) Joint and Survivor.
(3) One hundred percent (100%) Joint and Survivor.
(c) ACTUARIAL EQUIVALENCE. Any alternative benefit shall be the
actuarial equivalent of the Basic Form based on assumptions
for actuarial equivalence in the Retirement Plan with any
appropriate adjustments as determined by the Administrative
Committee. For purposes of determining, the value of the
fifty percent (50%) Joint and Survivor basic benefit, the
Participant's Spouse shall be used, and the Spouse's life
shall be used to determine the period over which any survivor
benefit will be paid, regardless if his or her trust or
estate is selected by the Participant as the Beneficiary.
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(d) For Participants who are legally married when benefits
commence, the Administrative Committee in its sole discretion
may actuarially adjust the benefit for any difference in age
between the Participant and Spouse.
4.7 Survivor Benefit
(a) PRE-BENEFIT COMMENCEMENT. In the event of the death of a
Participant who was currently employed by his or her Employer
and had Accrued Benefits under this Article 4 (whether or not
vested at the time of death), or if the Participant had
terminated or retired under this Article 4 but had not
commenced payment, and the Participant is survived by a
Spouse, such Spouse shall be eligible for a surviving spouse
benefit under this Section 4.7. In no other circumstances
shall the Spouse of a Participant or any other beneficiary of
a Participant under the Retirement Plan be entitled to any
benefit under this Article 4 in the event of the death of a
Participant hereunder, even if survivor benefits are
otherwise payable under the Retirement Plan. Also, without
limitation on the foregoing, and notwithstanding anything to
the contrary contained in this Section 4.7, no benefit shall
be payable to a Spouse of a deceased Participant or former
Participant who received during his or her lifetime a benefit
under any provision of this Article 4 in the optional lump
sum form in accordance with Section 5.2.
(1) AMOUNT. A Spouse who is eligible for a benefit under
subsection (a) above shall be entitled to receive a
monthly surviving spouse benefit for his or her life
in an amount equal to the amount by which (i) below
exceeds (ii) below:
(i) This amount equals fifty percent (50%) of
the monthly amount the Participant was
eligible to receive (even if only on a
deferred basis) at the time of death under
Section 4.1 (b)(1), 4.2(b)(1), 4.3(b)(1),
4.4(b)(1) or 4.5(b), as the case may be,
prior to the application of any applicable
setoff, with no reduction for early payment.
In the case of a participant who was still
in the employment of his or her Employer at
the time of death, this amount equals fifty
percent (50%) of the Participant's Accrued
Benefit as of the date of death, with no
reduction for early payment.
(ii) This amount equals the aggregate monthly
income, if any, payable to the Spouse and
to any other beneficiary of the Participant
under the Retirement Plan and the
Nondiscrimination Plan as a result of the
death of the Participant.
(2) COMMENCEMENT OF PAYMENT. Monthly surviving spouse
benefit payments shall be payable to the Beneficiary
for the life of the Spouse and shall commence the
first of the month following the Participant's
death.
(b) POST-BENEFIT COMMENCEMENT. If a Participant dies after
benefits have commenced, the benefit payable, if any, will be
based on the election made by the Participant in Section 4.6.
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ARTICLE 5-SPECIAL BENEFIT PROVISIONS
5.1 General Principles
(a) GENERAL RULE FOR OFFSET. The amount of any offset under
Section 4.1 (b)(2), 4.2(b)(2), 4.3(b)(2), 4.4(b)(2), 4.5(b),
or 4.7(a)(1)(ii), as the case may be, shall be determined by
using, the amount payable to a Participant during the month
in question under the Retirement Plan, the Nondiscrimination
Plan and (if applicable) any long-term disability plan,
taking into account in general applicable adjustments, if
any, including without limitation those for deferred payment
or early payment, and preretirement survivorship charges, but
any such determination shall be subject to the provisions of
Section 5.1(c); provided, that no adjustments shall be made
for any cost-of-living or similar changes on a Participant's
benefits after the date that benefits begin to be paid to the
Participant. A benefit may not be payable under the
Retirement Plan, the Nondiscrimination Plan, and/or any
long-term disability plan for all months a benefit is to be
payable under this Plan. Thus, the amount of the offset may
vary from month to month.
(b) QUALIFIED DOMESTIC RELATIONS ORDER. If a Participant's Spouse
or former Spouse has received or is entitled to receive a
benefit under the Retirement Plan or the Nondiscrimination
Plan as a result of a Qualified Domestic Relations Order, the
amount of the offset applicable to the Participant shall
include the amount that is so paid or is payable to the
Spouse.
(c) SPECIAL ADJUSTMENT. In determining the amount payable during
the month in question under the Retirement Plan and the
Nondiscrimination Plan, the benefit shall be adjusted to the
form of payment elected under Section 4.6 of this Plan. In
addition, the amounts determined under Sections 4.1(b)(1),
4.2(b)(1) and 4.4(b)(1) shall be adjusted if the Participant
elects a form of payment other than the Basic Form. This
adjustment shall be the actuarial equivalence (as set out in
4.6(c)) of the difference between the Basic Form and the form
elected.
5.2 Optional Accelerated Distribution
Notwithstanding any other provision of the Plan, at any time after
termination a Participant shall be entitled to receive, upon written
request to the Administrative Committee, a lump-sum distribution of
the Actuarial Equivalent of the Participant's unpaid vested accrued
benefits under Sections 4.1. 4.2, 4.4 and 4.5 of this Plan as of the
date on which the Committee receives the written request. The
accelerated distribution shall be subject to a penalty equal to ten
percent (10%) of the amount that would otherwise be distributed, and
that amount shall be forfeited by the Participant. The amount payable
under this section shall be paid in a lump sum within sixty-five (65)
days following the receipt of notice by the Administrative Committee
from the Participant. No additional benefits shall be payable from
this Plan to such Participant or his or her Beneficiary.
ARTICLE 6-BENEFICIARY DESIGNATION
6.1 Beneficiary Designation
Subject to Section 6.4 a Participant who is legally married when
benefits commence may only name their Spouse, trust or estate as the
Beneficiary. All other Participants shall have the right to Designate
one (1) or
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more persons or his or her trust or estate as Beneficiary (both
primary as well as secondary) to whom benefits under this Plan shall
be paid, if any, in the event of Participant's death after benefits
commence. Each Beneficiary designation shall be in a written form
prescribed by the Administrative Committee and shall be effective only
when filed with the Administrative Committee during the Participant's
lifetime.
6.2 Amendments
Any Beneficiary designation may be changed by a Participant without
the consent of any designated Beneficiary by the filing of a new
Beneficiary designation with the Administrative Committee. The filing
of a new Beneficiary designation form will cancel all Beneficiary
designations previously filed. If a Participant's compensation is
community property, any Beneficiary designation shall be valid or
effective only as permitted under applicable law.
6.3 No Beneficiary Designation-Post-Benefit Commencement
In the absence of an effective Beneficiary Designation for a deceased
Participant whose Beneficiaries are owed a benefit under 4.7(b), the
Participant's designated Beneficiary shall be deemed to be:
(a) The surviving Spouse, for Participants who were legally
married when benefits commenced.
(b) The Participant's estate, for all Participants who were not
married when benefits commenced and who elected an
alternative form of benefit.
6.4 Community Property
If the Participant resides in a community property state, the
following rules shall apply:
(a) Designation by a married Participant of a Beneficiary other
than the Participant's Spouse shall not be effective unless
the Spouse executes a written consent that acknowledges the
effect of the designation, or it is established the consent
cannot be obtained because the spouse cannot be located.
(b) A married Participant's Beneficiary designation may be
changed by a Participant to his or her trust or estate with
the consent of the Participant's Spouse as provided for in
Section 6.4(a) by the filing of a new designation with the
Committee.
6.5 Effect of Payment
The payment to the deemed Beneficiary shall completely discharge
Company's obligations under this Plan.
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ARTICLE 7-FINANCING
7.1 Financing
The benefits under this Plan shall be paid out of the general assets
of the Company or other Employer.
7.2 No Trust Created
Nothing contained in this Plan, and no action taken pursuant to the
provisions of this Plan, shall create or be construed to create a
trust of any kind or a fiduciary relationship between any Employer and
any Participant, his or her Spouse or any other person.
7.3 Unsecured Interest
No Participant hereunder shall have any interest whatsoever in any
specific asset of the Company or any other Employer. To the extent
that any person acquires a right to receive payments under this Plan,
such right shall be no greater than the right of any unsecured a
general creditor of the Company or other Employer.
7.4 "Rabbi" Trust
Notwithstanding the foregoing provisions of this Article 7, the
Company and the other Employers reserve the right to create and
contribute funds to a "Rabbi" trust for the purpose of paying some or
all of the benefits provided under this Plan, but the existence of any
such trust shall not in any way alter the relationship among the
Company, any other Employer and a Participant as described in this
Article 7.
7.5 Divested Subsidiary Employee Participants
The liability for benefits under this Plan for any Participant, who is
an employee of an Employer that is divested ("Divested Subsidiary
Employee Participant") is and shall remain solely the obligation of
that divested Employer. Any Divested Subsidiary Employee Participant
will have no future claim to benefits under this Plan, or against
assets of any related trust, if assets sufficient to fund that
Divested Subsidiary Employee Participant's benefits are transferred to
a plan or trust to be sponsored by the divested Employer, or if the
Divested Subsidiary Employee Participant is compensated for any
benefits accrued under this Plan.
ARTICLE 8-ADMINISTRATION
8.1 Administration
The Committee shall have complete control over the administration of
the Plan, with all powers necessary to enable it to carry out its
duties in that respect. In connection with its administration of the
Plan, the Committee shall be empowered to exercise discretion,
including with respect to the interpretation of the terms of the Plan
and in the determination of eligibility for benefits and the amounts
thereof; such discretionary determinations and interpretations shall
be binding upon all Participants and others hereunder. Without
limitation on the foregoing, the Committee shall be authorized to
construe and interpret all of the provisions of the Plan, to adopt
rules and practices concerning the administration of the same, and to
make an determination necessary hereunder, all of which shall be
binding and conclusive on all parties.
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8.2 Administrative Committee
The Administrative Committee shall consist of the Company's Chief
Financial Officer, the Vice President of Human Resources and the
General Counsel unless the Compensation Committee of the Board
designates otherwise. The Administrative Committee shall direct the
day to day administration of the Plan and shall act as agent of the
Committee in the operations of the Plan.
8.3 Liability of Committee and Board; Indemnification
To the extent permitted by law, no member of the Administrative
Committee, Committee or of the Board shall be liable to any person for
any action taken or omitted in connection with the interpretation and
administration of this Plan unless attributable to his or her own
gross negligence, fraud or bad faith. The Company shall indemnify the
members of the Administrative Committee, Committee and of the Board
against any and all claims, losses, damages and expenses, including
counsel fees incurred by them and any liability, including any amounts
paid in settlement with their approval, arising from their action or
failure to act, except when the same is determined to be attributable
to their gross negligence, fraud or bad faith. The provisions of this
Section 8.3 are not intended to be exclusive, and nothing, contained
in this Section 8.3 shall in any way limit indemnification provided
members of the Administrative Committee, Committee and/or members of
the Board under the bylaws of the Company, by contract, by statute or
otherwise.
8.4 Expenses
The cost of payment from this Plan and the expenses of administering
the Plan shall be borne by the Company and the other Employers.
8.5 Tax Withholding
An Employer may withhold, or require the withholding of from any
payment which it is required to make, any federal, state or local
taxes required by law to be withheld with respect to such payment and
such sum as the Employer may reasonably estimate as necessary to cover
any taxes for which the Employer may be liable and which may be
assessed with regard to such payment. Upon discharge or settlement of
such tax liability, the Employer shall distribute the balance of such
sum, if any, to the Participant from whose payment it was withheld, or
if such Participant is then deceased, to the beneficiary of such
Participant. Prior to making any payment hereunder, the Employer may
require such documents from any taxing authority, or may require such
indemnities or surety bond, as the Employer shall reasonably deem
necessary for its protection.
ARTICLE 9-MISCELLANEOUS
9.1 Nontransferability
In no event shall the Company or any Employer make any payment under
this Plan to any assignee or creditor of a Participant or of a
beneficiary. Prior to the time of a payment hereunder, a Participant
or a beneficiary shall have no rights by way of anticipation or
otherwise to assign (including without limitation in connection with a
divorce) or otherwise dispose of any interest under this Plan nor
shall rights be assigned or transferred by operation of law.
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9.2 Amendment or Termination
(a) AMENDMENTS; TERMINATION. The Plan may be amended or
terminated at any time by the Committee, and, except as
provided to the contrary in subsection (b) below, no
Participant or beneficiary of a deceased Participant shall
have a right to receive benefits under the Plan at any time.
Notice of any such amendment or termination shall be given in
writing to each Participant and beneficiary of a deceased
Participant having an interest in the Plan.
(b) EFFECT ON BENEFITS. No amendment or termination of the Plan
may adversely affect the benefits then payable or that may be
payable in the future with respect to any Participant
(without giving effect to such Plan amendment or termination)
to the extent described below:
(1) For a Participant whose employment with his or her
Employer has terminated prior to such Plan amendment
or termination, the benefits then payable or to be
payable to the Participant and his or her Spouse
shall not be altered;
(2) For a Participant under Article 4 whose employment
with his or her Employer has not terminated prior to
such Plan amendment or termination, the amount of
the Accrued Benefit as of the date of the Plan
amendment or termination shall not be decreased;
(3) During a Potential Change in Control and after a
Change in Control, any benefits payable or that
could be payable under Section 4.5 as a result of
such Change in Control shall not be altered.
9.3 Forfeiture of Benefits
As a condition of receiving, benefits under this Plan, a Participant
shall not, directly or indirectly, after the termination of his or her
employment with an Employer:
(a) Use or disclose any financial or business information of the
Company and/or its subsidiaries obtained by the Participant
during the course of his or her employment, other than
information that has been previously made available to the
public through normal, authorized business channels, in a
manner that would be prejudicial to the interests of the
Company and its subsidiaries. Notwithstanding the preceding
requirements of this subsection (a), a Participant may
disclose information if required by legal process or if the
disclosure is protected by the Florida Whistle-blower's Act
of 1986, or any similar applicable federal or state statute;
or
(b) Render any services of an advisory nature or become employed
by or participant or engage in any business in competition
with the Company or any of its subsidiaries. Without the
prior written consent of his or her Employer. A Participant
shall be considered as engaging in a business if he or she is
a shareholder or other owner, or partner, director, officer,
or employee of, or consultant to, the business: provided,
that a Participant shall not be prohibited from owning
securities of a competitor if (1) the securities owned
constitute less than two percent (2%) of the competitor's
total outstanding securities of the same class, and (2) the
Participant does not have the power to control, direct or
substantially influence the competitor's management or
policies.
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Any breach of any of the foregoing conditions will result in complete
forfeiture of any further benefits under the Plan for both the
Participant and any surviving Spouse of the Participant. The
immediately preceding sentence shall not require the forfeiture or the
return of any benefit received or due prior to the breach of any of
the specific conditions.
9.4 Applicable Law
This instrument shall be construed in accordance with and governed by
the laws of the State of Florida, to the extent not superseded by the
laws of the United States.
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