EXHIBIT 10.9
OMNIBUS BENEFIT RESTORATION PLAN
OF
SONOCO PRODUCTS COMPANY
Amended and Restated
Effective January 1, 1994
OMNIBUS BENEFIT RESTORATION PLAN
OF
SONOCO PRODUCTS COMPANY
Introduction
Effective January 1, 1979, Sonoco Products Company (the Company) adopted the
Supplemental Executive Retirement Plan of Sonoco Products Company (the SERP) to
provide income replacement to selected executive employees in addition to their
qualified retirement plan benefits. The SERP was amended from time to time to
improve benefits and was amended and restated effective November 1, 1984.
The SERP is again amended and restated and is renamed the Omnibus Benefit
Restoration Plan of Sonoco Products Company (the Plan), effective January 1,
1994. The purposes of the Plan are to (1) provide each eligible employee a
benefit equal to the benefit that cannot be paid under the Retirement Plan of
Sonoco Products Company because of limitations on benefits payable under
qualified defined benefit retirement plans under the Internal Revenue Code (the
Code), (2) provide each eligible employee the matching contribution that cannot
be made under the Sonoco Products Company Employee Savings and Stock Ownership
Plan because of limitations on annual contributions that can be made under
qualified Code Section 401(k) and (m) plans, and (3) provide a method to pay
eligible executives individually-negotiated retirement benefits under terms and
conditions described in confidential individual participation agreements which
form an integral part of this Plan.
The four type of benefits provided under this amended and restated Plan are
termed: (1) the Executive Benefit (the 60-percent income replacement benefit);
(2) the Excess Benefit; (3) the Excess ESSOP Benefit; and (4) benefits described
in confidential individual Participation Agreements which form an integral part
of the Plan.
The Company intends that the Plan be an unfunded plan maintained primarily for
the purpose of providing deferred compensation for a select group of management
and highly compensated employees, within the meaning of Sections 201, 301 and
401 of the Employee Retirement Income Security Act of 1974 (ERISA), commonly
called a top-hat plan. The Company reserves the right to interpret and operate
the Plan accordingly, and to amend the Plan as necessary to maintain its status
as a top-hat plan as defined by any law issued under ERISA or the Code.
Provisions which apply only to specific groups of employees are set forth in
Addenda to the Plan, which form an integral part of the Plan.
The rights to an Executive Benefit of any employee who terminated before the
adoption date of this amended and restated Plan will be determined under the
Plan as in effect on the date the employee terminated, without regard to the
retroactive effective date.
Notwithstanding any other provision of this amended and restated Plan, no
amended provision which would modify the Plan in any material respect will apply
to any participant to whom Code Section 162(m) applies.
OMNIBUS BENEFIT RESTORATION PLAN
OF
SONOCO PRODUCTS COMPANY
Table of Contents
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ARTICLE 1 DEFINITIONS
1.1 Accrued Benefit 1
(a) Executive Benefit 1
(b) Excess Retirement Benefit 2
(c) Participation Agreement Benefit 2
(d) Excess ESSOP Benefit 2
1.2 Actuarial Equivalent 3
1.3 Benefit Commencement Date 3
1.4 Board 3
1.5 Code 3
1.6 Committee 3
1.7 Company 4
1.8 Compensation 4
1.9 Controlled Group 4
1.10 Delayed Retirement Date 4
1.11 Earliest Retirement Date 5
1.12 Earliest Retirement Age 5
1.13 Effective Date 5
1.14 Employee 5
1.15 Employer 5
1.16 Employment 5
1.17 Employment Date 6
1.18 ERISA 6
1.19 ESSOP 6
1.20 Excess ESSOP Account 6
1.21 Excess ESSOP Benefit 6
1.22 Excess Matching Contribution 6
1.23 Excess Retirement Benefit 6
1.24 Executive Benefit 7
1.25 Final Average Earnings 7
1.26 Executive Compensation Committee of the Board 7
1.27 Investment Council 7
1.28 Negotiated Benefit 7
1.29 Normal Retirement Age 7
1.30 Normal Retirement Date 8
1.31 Participant 8
1.32 Participation Agreement 8
1.33 Participation Agreement Benefits 8
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1.34 Plan 8
1.35 Plan Administrator 8
1.36 Plan Year 8
1.37 Retirement Incentive Benefit 8
1.38 Retirement Plan 8
1.39 Retirement Plan Benefit 9
1.40 Social Security Benefit 9
1.41 Spouse 9
1.42 Termination Date 9
1.43 Years of Benefit Service (or Benefit Service) 10
1.44 Years of Vesting Service (or Vesting Service) 10
(a) Excess Retirement Benefit and Excess ESSOP Benefit 10
(b) Executive Benefit 11
ARTICLE 2 ELIGIBILITY
2.1 Eligibility 12
(a) Executive Benefit 12
(b) Excess Retirement Benefit 12
(c) Participation Agreement 13
(d) Excess ESSOP Benefit 13
2.2 Participation Upon Reemployment 13
2.3 Forfeiture 13
2.4 Adoption of the Plan by a Controlled Group Member 14
(a) Method of Adopting the Plan by a Controlled Group Member 14
(b) Transmittal of Resolution 15
ARTICLE 3 AMOUNT AND PAYMENT DATE OF BENEFITS
3.1 Amount of Benefits 16
(a) Executive Benefit 16
(b) Excess Retirement Benefit 17
(c) Participation Agreement Benefit 17
(d) Excess ESSOP Benefit 17
3.2 Benefit Commencement Date 17
3.3 Adjustment for Early Retirement 18
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(a) Executive Benefit 18
(b) Excess Retirement Benefit 18
(c) Participation Agreement Benefit 19
3.4 Adjustment for Delayed Retirement 19
3.5 Termination of Employment or Participation 19
(a) Executive Benefit 19
(b) Excess Retirement Benefit 19
(c) Participation Agreement Benefit 20
(d) Excess ESSOP Benefit 20
3.6 Disability Retirement 21
(a) Eligibility 21
(b) Amount of Disability Retirement Benefit 21
(c) Benefit Commencement Date 21
(d) Recovery 22
3.7 Reemployment 23
(a) Reemployment Before Receipt of Benefits 23
(b) Reemployment After Receipt of Cash-Out 23
(c) Reemployment After Receipt of Monthly Payments 23
ARTICLE 4 FORM OF PAYMENT
4.1 Form of Payment 24
(a) Executive Benefit 24
(b) Excess Retirement Benefit 24
(c) Participation Agreement Benefit 25
4.2 Form of Payment for the Excess ESSOP Benefit 25
4.3 Cash-Out of Small Benefits 25
4.4 Effect of Death on Forms of Payment 26
(a) Death of Spouse or Beneficiary Before Benefits Begin 26
(b) Death of Participant Before Benefits Begin 26
(c) Death of Spouse or Beneficiary After Benefits Begin 26
(d) Death of Participant After Benefits Begin 26
4.5 Designation of Beneficiaries 27
(a) Identity of Beneficiary 27
(b) Payment to Minor or Incompetent Beneficiaries 27
(c) Judicial Determination 27
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4.6 Payment to the Participant's Representative 27
4.7 Unclaimed Benefits 28
4.8 Correction of Mistakes 28
ARTICLE 5 PRERETIREMENT DEATH BENEFITS
5.1 Executive Benefit 30
(a) Coverage for Surviving Spouse Only 30
(b) Amount of Spouse's Preretirement Death Benefit 31
5.2 Excess Retirement Benefit 32
5.3 Participation Agreement Benefit 32
5.4 Excess ESSOP Benefit 33
ARTICLE 6 UNFUNDED TOP-HAT PLAN
6.1 Securing Payment of the Plan Benefit 34
6.2 Assets Subject to General Creditors 34
6.3 No Participant Contributions 35
6.4 Exclusive Benefit 35
6.5 Taxation 35
ARTICLE 7 AMENDMENT AND TERMINATION
7.1 Amendment 36
(a) Procedure 36
(b) Prohibited Amendments 36
(c) Administrative Changes Without Plan Document 36
(d) Limited to Active Participants 37
7.2 Termination of the Plan 37
ARTICLE 8 ADMINISTRATION
8.1 Allocation of Fiduciary Responsibilities 38
(a) The Board 38
(b) The Company and the Employers 39
(c) The Executive Compensation Committee of the Board 39
(d) The Benefits Committee 39
(e) The Investment Council 43
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8.2 Expenses 46
8.3 Indemnification 47
8.4 Claims Procedure 47
ARTICLE 9 MISCELLANEOUS
9.1 Headings 48
9.2 Construction 48
9.3 Severability 48
9.4 Nonalienation 48
9.5 No Employment Rights 49
9.6 No Enlargement of Rights 49
9.7 Withholding for Taxes 49
ADDENDUM A Crellin Employees
ADDENDUM B Engraph Employees
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ARTICLE 1
Definitions
As used in the Plan, the following words and phrases and any derivatives thereof
will have the meanings set forth below unless the context clearly indicates
otherwise. Definitions of other words and phrases are set forth throughout the
Plan. Section references indicate sections of the Plan unless otherwise stated.
The masculine pronoun includes the feminine, and the singular number includes
the plural and the plural the singular, whenever applicable.
1.1 Accrued Benefit.
(a) Executive Benefit. The 60-percent income replacement benefit
which the Participant has earned as of the date of
determination, prorated for Benefit Service and calculated
under Subsection 3.1(a), on the basis of his Final Average
Earnings and Years of Benefit Service, minus the offset for
(1) his Retirement Plan Benefit that is payable as of his
Normal Retirement Date as a 75 percent joint and survivor
annuity under the Retirement Plan, and (2) 100 percent of his
Social Security Benefit.
(b) Excess Retirement Benefit. As of the date of determination, an
amount equal to the difference between the amount the
Participant would have earned under the Retirement Plan in the
absence of statutory restrictions, and the amount he has
earned after applying those restrictions; provided
1
that this benefit will not be paid to any Participant who
receives the Executive Benefit.
(c) Participation Agreement Benefit. An amount equal to the
benefit that the Participant has earned as of the date of
determination under his Participation Agreement, after
applying any applicable offsets. The Participation Agreement
may provide for the payment of one or both of the following
types of benefits:
(1) Negotiated Benefits. One or more types of benefits
which are in addition to any other Employer-provided
qualified or nonqualified benefit to which the
Participant is entitled or is expected to become
entitled, the terms and conditions of which are
described in his Participation Agreement.
(2) Retirement Incentive Benefit. A benefit designed as a
retirement incentive, which is in addition to any
other Employer-provided qualified or nonqualified
benefit to which the Participant is entitled upon
retirement, the terms and conditions of which are
described in his Participation Agreement.
(d) Excess ESSOP Benefit. As of the date of determination, the
balance of the Participant's Excess ESSOP Account, including
his share of unallocated Excess Matching Contributions and
gains/losses.
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1.2 Actuarial Equivalent. A benefit of equal value computed on the basis of
(a) the 1984 Unisex Pension Mortality Table, with no age setback for
Participants and a three-year age setback for beneficiaries, and (b)
interest at 9 percent compounded annually for forms of payment other
than lump sum. The interest rate used to determine equivalent lump sum
values will be the Company's discount rate used to compute FAS-87 costs
under the Retirement Plan, as stated each year in the Company's annual
report to shareholders.
1.3 Benefit Commencement Date. The first day of the first month for which a
benefit is payable as an annuity to the Participant under Articles 3
and 4, or a death benefit is payable to the surviving Spouse or other
beneficiary under Article 5. Unless otherwise negotiated, the Benefit
Commencement Date for each benefit will be the same as the Benefit
Commencement Date for the corollary benefit under the Retirement Plan.
If the benefit is payable in a lump sum, the Benefit Commencement Date
is the date when the payment is issued.
1.4 Board. The Board of Directors of the Company.
1.5 Code. The Internal Revenue Code of 1986 as amended from time to time,
and regulations and rulings issued under the Code.
1.6 Committee. The Benefits Committee, which will serve as the Plan
Administrator and will have primary responsibility for administering
the Plan under Article 8.
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1.7 Company. Sonoco Products Company, a corporation organized and existing
under the laws of the State of South Carolina, or its successor or
assign which adopts this Plan.
1.8 Compensation. The taxable earnings paid by the Employer to the
Participant and reported on his Form W-2 for the calendar year, plus
amounts deferred under Code Sections 401(k) and 125 pursuant to the
Participant's salary reduction agreement; provided that if the
Participant terminates before the end of a year, his Compensation will
be annualized for his final year and he will receive credit for any
bonus earned in his final year, annualized for the year. Compensation
will exclude (1) severance pay, (2) reimbursement for moving expenses,
(3) reimbursement for educational expenses, (4) automobile allowance,
(5) tax counsel allowance, and (6) compensation related to the exercise
of a stock option grant or other stock related compensation program.
Compensation will not be subject to the $150,000 (indexed) limitation
which applies to the Retirement Plan and to the ESSOP under Code
Section 401(a)(17).
1.9 Controlled Group. For purposes of this Plan only, the Company and each
entity that is directly or indirectly controlled by the Company, and
any entity in which the Company has a significant equity interest, as
determined by the Committee.
1.10 Delayed Retirement Date. The last day of the month in which the
Participant actually retires after working past his Normal Retirement
Date.
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1.11 Earliest Retirement Age. The Participant's 55th birthday.
1.12 Earliest Retirement Date. The last day of the month in which the
Participant reaches age 55. The Early Retirement Date of the
Participant who retires before his Normal Retirement Date is the last
day of the month in which he actually retires.
1.13 Effective Date. The Effective Date of the SERP (the predecessor to this
Plan) was January 1, 1979. January 1, 1994 is the Effective Date of the
Plan, as amended and restated to include (a) the Executive Benefit (the
60-percent income replacement benefit previously payable under the
SERP), (b) the Excess Benefit; (c) the Excess ESSOP Benefit; and (d)
Participation Agreement Benefits. However, the Plan as previously in
effect for Executive Benefits will continue to apply to any Participant
who terminated before the date when this amended and restated Plan is
adopted.
1.14 Employee. An individual who is regularly employed by an Employer.
1.15 Employer. The Company and each Controlled Group member which adopts
this Plan in accordance with Section 2.4.
1.16 Employment. The period during which an Employee is regularly employed
by an Employer.
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1.17 Employment Date. The date on which the Employee first earned
Compensation.
1.18 ERISA. The Employee Retirement Income Security Act of 1974, as amended
from time to time, and regulations and rulings issued under ERISA.
1.19 ESSOP. The Sonoco Products Company Employee Savings and Stock Ownership
Plan, which is qualified for tax-exempt status under Code Section
401(a), 401(k), 401(m) and 501(a).
1.20 Excess ESSOP Account. The account which the Committee maintains for
accounting purposes only to record the Participant's allocations of
Excess Matching Contributions (if any) and gains/losses; provided that
Plan assets (if any) will not be segregated among accounts, and each
Participant will have only an unsecured contractual right against his
Employer for the amount of his Excess ESSOP Benefit.
1.21 Excess ESSOP Benefit. See Subsection 1.1(d).
1.22 Excess Matching Contribution. The amount of Matching Contribution which
the Employer cannot contribute to the ESSOP for the Participant for the
Plan Year because of statutory limitations that apply to the ESSOP,
i.e. Code Sections 401(a)(17), 401(k), 401(m) and/or 415.
1.23 Excess Retirement Benefit. See Subsection 1.1(b).
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1.24 Executive Benefit. See Subsection 1.1(a).
1.25 Executive Compensation Committee of the Board. The Committee appointed
by the Board to administer executive compensation, which will have
responsibility for amending and terminating the Plan under Article 7.
1.26 Final Average Earnings. For purposes of the Executive Benefit, the
Participant's average earned Compensation for the 3 calendar years
during his Employment which produce the highest average. The Committee
will calculate Compensation by annualizing the final year's pay if the
Participant terminates before year-end, and by attributing bonuses,
other incentive pay and deferred pay to the year when earned instead of
the year when paid. If the Participant has fewer than 3 whole calendar
years of Compensation, after annualizing his final year, the Committee
will use the average of his actual whole and partial years.
1.27 Investment Council. The group of individuals appointed by the Board
from time to time, who will have the investment powers and
responsibilities described in Article 8.
1.28 Negotiated Benefit. See Subsection 1.1(c)(1).
1.29 Normal Retirement Age. The Participant's 65th birthday.
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1.30 Normal Retirement Date. The last day of the month in which the
Participant reaches age 65.
1.31 Participant. An Employee participating in the Plan under Section 2.1.
1.32 Participation Agreement. A confidential agreement which forms an
integral part of this Plan, and which describes the terms and
conditions of benefits that were individually negotiated between the
Employer and the Participant.
1.33 Participation Agreement Benefits. See Subsection 1.1(c).
1.34 Plan. The Omnibus Benefit Restoration Plan of Sonoco Products Company,
as amended from time to time.
1.35 Plan Administrator. The Committee.
1.36 Plan Year. The 12-month period beginning January 1 and ending December
31 of each year.
1.37 Retirement Incentive Benefit. See Subsection 1.1(c)(2).
1.38 Retirement Plan. The Retirement Plan of Sonoco Products Company, which
is qualified for tax-exempt status under Code Sections 401(a) and
501(a), or other
8
similar qualified plan maintained by an Employer, excluding any plan
with Code Section 401(k) and/or (m) features.
1.39 Retirement Plan Benefit. The monthly amount, or applicable Actuarial
Equivalent benefit, which the Participant is entitled to receive under
the Retirement Plan.
1.40 Social Security Benefit. The primary amount of Social Security benefits
which the Participant would be entitled to receive at age 62 or later
actual retirement age, based upon the Social Security Act as in effect
on his Termination Date, assuming no increase in Compensation after the
end of the calendar year that precedes his Termination Date.
1.41 Spouse. For purposes of the benefit described in Subsections 4.1(b) and
(c), the Spouse will be the individual to whom the Participant is
legally married on his Benefit Commencement Date. For purposes of the
death benefit described in Subsection 4.1(a) and 5.1, the Spouse will
be the individual to whom the Participant has been legally married
throughout the one-year period ending on his date of death. In the
event of a dispute, such status will be determined in accordance with
the applicable laws of the Participant's state of domicile.
1.42 Termination Date. The earlier of (a) the date the Employee quits,
retires, is discharged or dies; or (b) the first anniversary of the
beginning date of a paid or unpaid absence for any reason other than
resignation, retirement, discharge or
9
death; provided that a Termination Date will not occur during an
authorized leave of absence which is included in Vesting Service under
the Retirement Plan; and provided further that the Termination Date of
the Employee who quits, retires, is discharged or dies before the first
anniversary of his absence (or the second anniversary for a parental
leave) will be the date such event occurs. Accrual of Benefit Service
and Vesting Service will cease on the Termination Date except as
otherwise provided under the Retirement Plan.
1.43 Years of Benefit Service (or Benefit Service). For purposes of the
Excess Retirement Benefit, Benefit Service includes the Participant's
whole and partial Years of Benefit Service which he has earned under
the Retirement Plan. For purposes of the Executive Benefit, Benefit
Service includes the Participant's whole and partial Years of Benefit
Service which he has earned under the Retirement Plan, except that
credit begins on his Employment Date.
1.44 Years of Vesting Service (or Vesting Service).
(a) Excess Retirement Benefit and Excess ESSOP Benefit. For
purposes of the Excess Retirement Benefit and the Excess ESSOP
Benefit, Vesting Service includes the Participant's whole and
partial Years of Vesting Service which he has earned under the
Retirement Plan and the ESSOP, respectively, and will become
vested as provided in Subsection 3.5(b) and (d), respectively.
10
(b) Executive Benefit. Each Participant in the Executive Benefit
portion of the Plan as of the adoption date of the Plan will
be fully vested in his Executive Benefit. Each other
Participant will receive credit for his whole and partial
Years of Vesting Service as defined in the Retirement Plan,
except that credit begins on the date when he first becomes
eligible for the Executive Benefit, and will become vested as
provided in Subsection 3.5(a).
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ARTICLE 2
Eligibility
2.1 Eligibility. Each Employee who was an active Participant in the Plan on
December 31, 1993 will continue to participate after that date. After
that date, each Employee will become a Participant under the various
portions of the Plan as follows:
(a) Executive Benefit. Subject to the Board's approval, the
Committee will determine the eligible status and the
eligibility date of each Employee who becomes a Participant in
the Executive Benefit portion of the Plan, and will maintain a
list of Participants and their eligibility dates. Participants
who are eligible for the Executive Benefit will not be
eligible for the Excess Retirement Benefit.
(b) Excess Retirement Benefit. Subject to the Committee's
approval, each active Participant in the Retirement Plan will
begin to participate in the Excess Retirement Benefit portion
of the Plan either on the date as of which his Retirement Plan
Benefit becomes limited by the $150,000 (indexed) limitation
on Compensation that can be considered under the Retirement
Plan, and/or by the Code Section 415 limitations described in
the Retirement Plan.
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(c) Participation Agreement. Each Employee who executes a
Participation Agreement with his Employer will become eligible
for benefits under that specific Agreement as of the date
stated therein.
(d) Excess ESSOP Benefit. Subject to the Committee's approval,
each active participant in the ESSOP will begin to participate
in the Excess ESSOP Benefit portion of this Plan as of the
date when his matching contributions under the ESSOP becomes
limited by the $150,000 (indexed) limitation on Compensation
that can be considered under the ESSOP, by the dollar limit on
elective deferrals, and/or by the Code Section 415 annual
additions limitations described in the ESSOP.
2.2 Participation Upon Reemployment. In the event a Participant in any
portion of the Plan terminates for any reason and resumes Employment,
or terminates participation in the Plan, the Committee will determine
whether and to what extent he will resume participating in the Plan,
subject to the Board's or Committee's approval for reentry into the
Executive Benefit and/or Participation Agreement portions of the Plan.
2.3 Forfeiture. Any Participant will forfeit his Executive Benefit
(including all survivor benefits) in the event that within 3 years
after his termination of Employment, he (a) enters into any activity
which competes with any business conducted by any Controlled Group
member in any geographic area where the Controlled Group member has
established a place of business, unless he has the Committee's prior
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written consent; (b) interferes with the relations between any
Controlled Group member and any customer; or (c) engages in any
activity which can reasonably be expected to result in any decrease of
or loss in profits by any Controlled Group member.
2.4 Adoption of the Plan By a Controlled Group Member. A Controlled Group
member may adopt the Plan by appropriate action of its board of
directors or authorized officer(s) or representative(s), subject to
approval of the Board.
(a) Method of Adopting the Plan by a Controlled Group Member. To
adopt the Plan, the board of directors of the Controlled Group
member must approve a resolution expressly adopting the Plan
for the benefit of its eligible employees. In such resolution
the Controlled Group member will delegate to the Company and
its Board authority:
(1) to administer the Plan through the appointment of the
members of the Committee and the Investment Council,
(2) to enter into an annuity or insurance contract, a
rabbi trust, or other funding medium selected by the
Investment Council, and
(3) to amend the Plan at any time and to take any other
steps that the Company considers necessary or
advisable in connection with the administration and
implementation of the Plan.
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(b) Transmittal of Resolution. The Employer will transmit a
certified copy of such resolution to the Company's Board. The
effective date of the Employer's adoption of the Plan will be
stated in the resolution.
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ARTICLE 3
Amount and Payment Date of Benefits
3.1 Amount of Benefits. The Participant will receive one or more of the
following benefits to which he is entitled under applicable provisions
of the Plan. The Participant who receives an Executive Benefit will not
receive an Excess Retirement Benefit.
(a) Executive Benefit. The Executive Benefit will be a monthly
benefit calculated as follows:
(1) 4 percent multiplied by the Participant's whole and
partial Years of Benefit Service not in excess of 15
years, with the product (maximum of 60 percent)
multiplied by his Final Average Earnings, and that
product divided by 12, multiplied (if applicable) by
(2) the ratio (not greater than one) of the number of his
whole and partial Years of Benefit Service earned as
of his Termination Date, over the number he would
have earned if he had continued Employment until his
Normal Retirement Date, with the product reduced by
(3) the sum of (A) his monthly Retirement Plan Benefit
actually paid, and (B) his monthly Social Security
Benefit.
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Notwithstanding any other provision of this amended and
restated Plan, no amended provision which would modify the
Executive Benefit in any material respect will apply to any
Participant to whom Code Section 162(m) applies. The Plan as
it existed before this amendment and restatement will continue
to apply to each such Participant in all material respects.
(b) Excess Retirement Benefit. The Excess Retirement Benefit will
be a monthly benefit in an amount equal to the difference
between the amount the Participant would have received under
the Retirement Plan in the absence of statutory restrictions,
and the amount he actually receives or is entitled to receive
after applying those restrictions.
(c) Participation Agreement Benefit. The Participant Agreement
Benefit will be the amount described in the Agreement.
(d) Excess ESSOP Benefit. The Excess ESSOP Benefit will be the
Participant's Excess ESSOP Account balance, which will be paid
as described in Section 4.2.
3.2 Benefit Commencement Date. Each monthly benefit will be payable on the
first day of each month beginning on the Participant's Benefit
Commencement Date under the Retirement Plan. Unless otherwise
negotiated, the Participant
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may not elect a Benefit Commencement Date for any benefit that is
different from his Benefit Commencement Date under the Retirement Plan.
Payments will continue according to the applicable form of payment, as
described in Article 4.
3.3 Adjustment for Early Retirement. The Participant who retires before his
62nd birthday and elects to begin receiving his monthly benefits early,
will receive his benefits adjusted as follows:
(a) Executive Benefit. The Participant will receive his Executive
Benefit in a monthly amount calculated as described in
Subsection 3.1(a), but with the Subsection 3.1(a)(1) portion
of the benefit reduced for early payment by an amount equal to
.25 percent for each month by which his Benefit Commencement
Date precedes his 62nd birthday.
(b) Excess Retirement Benefit. The Participant will receive his
Excess Retirement Benefit in a monthly amount calculated as
described in Subsection 3.1(a), but with the Subsection
3.1(a)(1) portion of the benefit reduced for early payment by
an amount equal to .3 percent for each month by which his
Benefit Commencement Date precedes his 65th birthday.
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(c) Participation Agreement Benefit. The Participant will receive
his Participation Agreement Benefit adjusted for early payment
to the extent provided in his Participation Agreement.
3.4 Adjustment for Delayed Retirement. The Participant who continues
Employment after his Normal Retirement Date will continue to accrue
Executive Benefits until he actually retires, under applicable
provisions of the Plan.
3.5 Termination of Employment or Participation.
(a) Executive Benefit. Each Participant will become fully vested
in the Executive Benefit portion of his Accrued Benefit as of
the earlier of the date he completes 5 Years of Vesting
Service, or reaches Early Retirement Age. The vested
Participant who terminates Employment or participation before
his Earliest Retirement Date will receive a deferred Executive
Benefit beginning on his Normal Retirement Date unless he
elects to receive payments beginning on an Early Retirement
Date as reduced under Subsection 3.3(a). The Participant who
terminates Employment or ceases to be eligible for the
Executive Benefit before he becomes vested, will not receive
any Executive Benefit.
(b) Excess Retirement Benefit. Each Participant will become fully
vested in the Excess Retirement Benefit portion of his Accrued
Benefit as of the earlier of the date he completes 5 Years of
Vesting Service, or reaches
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Early Retirement Age. The vested Participant who terminates
Employment or participation before his Earliest Retirement
Date will receive a deferred Excess Retirement Benefit
beginning on his Normal Retirement Date unless he elects to
receive payments beginning on an Early Retirement Date as
reduced under Subsection 3.3(b). The Participant who
terminates Employment or ceases to be eligible for the Excess
Retirement Benefit before he becomes vested, will not receive
any Excess Retirement Benefit.
(c) Participation Agreement Benefit. Unless otherwise negotiated
and stated in his Participation Agreement, each Participant
will become fully vested in the Participation Agreement
Benefit portion of his Accrued Benefit as of the earlier of
the date he completes 5 Years of Vesting Service, or reaches
Early Retirement Age. The vested Participant who terminates
Employment or participation before his Earliest Retirement
Date will receive a deferred Participation Agreement Benefit
beginning on his Normal Retirement Date unless he elects to
receive payments beginning on an Early Retirement Date as
reduced to the extent provided in his Participation Agreement.
The Participant who terminates Employment or ceases to be
eligible for the Participation Agreement Benefit before he
becomes vested, will not receive any Participation Agreement
Benefit.
(d) Excess ESSOP Benefit. The Participant will become vested in
his Excess ESSOP Benefit under applicable provisions of the
ESSOP.
20
3.6 Disability Retirement.
(a) Eligibility. The Participant in the Executive Benefit and/or
Excess Retirement Benefit portions of the Plan, who incurs a
total and permanent disability, will be entitled to the
benefit described in this Section. To be treated as totally
and permanently disabled under this Plan, the Participant must
either (1) receive benefits under an Employer's long-term
disability plan, (2) receive a written determination from the
Social Security Administration that he is eligible to receive
Social Security disability benefits, or (3) receive Workers'
Compensation disability benefits due to an occupational
illness or injury.
(b) Amount of Disability Retirement Benefit. The Participant who
terminates Employment because of a disability and who is
entitled to an Executive Benefit will receive a monthly
benefit in an amount equal to 60 percent of his final pay as
defined in his Employer's long-term disability plan, minus the
amounts he receives as either long-term disability benefits
provided by his Employer, his combined family Social Security
disability benefits, and his Retirement Plan Benefit, or which
he would be entitled to receive upon proper application.
(c) Benefit Commencement Date. The disability retirement benefit
will be payable to the disabled Participant as of the first
day of each month
21
beginning on the date when he begins to receive his
Employer-provided long-term disability benefits. His
disability benefit payments will continue until his Earliest
Retirement Date, at which time his benefit will convert to a
reduced early retirement benefit as described in Section 3.3.
(d) Recovery. The Committee will treat a Participant as having
recovered as of the date when he ceases to be eligible for
either long-term disability benefits under his Employers's
plan, Social Security disability benefits, or Workers'
Compensation disability benefits, as applicable. The disabled
Participant who recovers, immediately notifies his Employer of
his recovery, and resumes Employment within a reasonable
period of time, or offers to resume active Employment but
cannot because no suitable position is available, will receive
a subsequent Executive Benefit calculated by taking into
account his aggregated whole and partial Years of Benefit
Service and offsetting the Actuarial Equivalent value of the
disability benefits he previously received. The disabled
Participant who recovers but fails to timely notify his
Employer, or fails to resume active Employment if a suitable
position is available and is offered to him, will be treated
as if he had terminated Employment on his last day of active
Employment and any subsequent Executive Benefit to which he is
entitled will be calculated by offsetting the Actuarial
Equivalent value of the disability benefits he previously
received.
22
3.7 Reemployment.
(a) Reemployment Before Receipt of Benefits. The benefits payable
to the vested Participant who terminates or retires and
resumes Employment before he receives any benefit payments,
will be based on his aggregated Compensation and all his whole
and partial Years of Benefit Service and will begin after his
subsequent retirement in accordance with applicable provisions
of the Plan.
(b) Reemployment After Receipt of Cash-Out. The benefit payable to
the Participant who (1) terminated or retired, (2) received a
cash-out of his benefit, and (3) resumed Employment, will not
receive credit for the whole and partial Years of Benefit
Service for which he received the cash-out.
(c) Reemployment After Receipt of Monthly Payments. Unless
otherwise negotiated, monthly Executive Benefit payments will
be suspended immediately for the Participant who retired,
began to receive monthly payments, and then resumed
Employment. Upon his subsequent retirement, the Committee will
recalculate his monthly benefit to include his most recent
Compensation and his total Benefit Service earned during all
periods of his Employment.
23
ARTICLE 4
Form of Payment
4.1 Form of Payment.
(a) Executive Benefit. The Participant who does not have a Spouse
as of his Benefit Commencement Date will receive his Executive
Benefit in the form of a single life annuity, with 10 years of
payment guaranteed. The Participant who has a Spouse will
receive his Executive Benefit in the form of a 75-percent
joint and survivor annuity. If the Spouse is more than 10
years younger than the Participant, his monthly benefit will
be reduced by 100 percent of the difference between the
10-year adjustment factor for the 75-percent annuity, and the
adjustment factor for the 75-percent annuity based on the
actual number of years that the Spouse is younger than the
Participant. In the event the Participant elects the 100
percent joint and survivor annuity under the Retirement Plan
and his Retirement Plan Benefit is reduced by the Code Section
415 limits, this Plan will reduce his Spouse's survivor
benefit (if any is paid) by 25 percent of the Spouse's
survivor benefit paid under the Retirement Plan.
(b) Excess Retirement Benefit. The Participant will receive his
Excess Retirement Benefit in the same form as he receives his
Retirement Plan Benefit. His Excess Retirement Benefit will be
reduced by the same factors as in the Retirement Plan for
early payment.
24
(c) Participation Agreement Benefit. The Participant will receive
his Participation Agreement Benefit in the form specified in
his Participation Agreement.
4.2 Form of Payment for the Excess ESSOP Benefit. The Participant may elect
to receive his Excess ESSOP Benefit in either a single lump sum payment
as of January 1 following his Termination Date, or in annual
installments of 2 to 15 years beginning January 1 following his
Termination Date. He must make his election at least one year before
his Benefit Commencement Date.
4.3 Cash-Out of Small Benefits. If either the Executive Benefit, Excess
Retirement Benefit, Participation Agreement Benefit, or Excess ESSOP
Benefit has an Actuarial Equivalent lump sum value not greater than
$3,500, the Committee may, in its discretion, make a single lump sum
payment as soon as practicable after the Termination Date.
25
4.4 Effect of Death on Forms of Payment
(a) Death of Spouse or Beneficiary Before Benefits Begin. If the
Participant's benefit is payable in any form with a survivor
benefit and his Spouse or designated beneficiary dies before
his Benefit Commencement Date, the survivor form of payment
will not become effective, and he will instead receive his
benefits as a single life annuity unless he properly elects
another form before his Benefit Commencement Date.
(b) Death of Participant Before Benefits Begin. If the
Participant's benefits are payable in any form with a survivor
benefit and he dies before his Benefit Commencement Date, his
Spouse or other beneficiary will not be entitled to any
benefits under any such form. His surviving Spouse will be
entitled only to the preretirement death benefit payable under
Article 5.
(c) Death of Spouse or Beneficiary After Benefits Begin. If the
Participant's benefit payments have begun in any form with a
survivor benefit and his Spouse or other beneficiary dies
before he does, he will continue to receive his benefit in the
same form.
(d) Death of Participant After Benefits Begin. If the Participant
dies after his benefits have begun, no death benefit will be
payable except to the extent provided under the form of
benefit he was receiving.
26
4.5 Designation of Beneficiaries.
(a) Identity of Beneficiary. The Participant's beneficiary for his
Executive Benefit, Excess Retirement Benefit and/or
Participation Agreement Benefit will be the same as his
beneficiary for his Retirement Plan Benefit. For his Excess
ESSOP Benefit, the Participant will designate one or more
beneficiary(s) on a form provided by the Committee.
(b) Payment to Minor or Incompetent Beneficiaries. In the event
the deceased Participant's beneficiary is a minor, or is
legally incompetent, or cannot be located, the Committee will
make payment to the court-appointed guardian or representative
of such beneficiary, or to a trust established for the benefit
of such beneficiary, as applicable.
(c) Judicial Determination. In the event the Committee considers
it appropriate for any reason not to direct the payment of a
deceased Participant's benefits as specified in this Section
4.4, the Committee may have a court of applicable jurisdiction
determine to whom payments should be made, in which event all
expenses incurred in obtaining the determination may be
charged against the payee.
4.6 Payment to the Participant's Representative. If the Participant is
incompetent to handle his affairs on his Benefit Commencement Date or
thereafter, or cannot be located after reasonable effort, the Committee
will make payments to his
27
court-appointed personal representative, or if none is appointed the
Committee may in its discretion make payments to his next-of-kin;
provided that the Committee may request a court of competent
jurisdiction to determine the payee, in which event all expenses
incurred in obtaining the determination may be charged against the
payee.
4.7 Unclaimed Benefits. In the event the Committee cannot locate any person
entitled to receive the Participant's vested benefits, with reasonable
effort and after a period of five years, his interest will be cancelled
but will be reinstated within 60 days after he is located.
4.8 Correction of Mistakes. In the event the Committee discovers that a
mistake has been made in the calculation of the benefit amount payable
to any Participant or beneficiary, it will correct the mistake as soon
as practicable. If an overpayment in monthly payments has been made,
the Committee will reduce future monthly benefit payments to the extent
necessary to recover the overpayment within a reasonable period of
time. If an overpayment has been made in a lump sum, the Committee will
seek cash reimbursement. If an underpayment in monthly payments has
been made, the Committee either will pay the amount of the underpayment
in a single sum, or will increase future monthly benefit payments to
the extent necessary to pay the underpayment within a reasonable period
of time. If an underpayment has been made in a lump sum, the Committee
will pay the amount of the underpayment in a single sum. However, if
the Committee determines that the burden or expense of
28
seeking recovery of any overpayment would be greater than the potential
recovery warrants, it may in its discretion forego recovery efforts.
29
ARTICLE 5
Preretirement Death Benefits
5.1 Executive Benefit. The surviving Spouse of the Participant is vested in
his Executive Benefit and who dies before his Benefit Commencement
Date, will receive the monthly death benefit described in this Section.
However, to the extent that a different death benefit is provided under
the Participant's Participation Agreement, that benefit will be paid.
(a) Coverage for Surviving Spouse Only. The death benefit coverage
will become effective on the later of (1) the date the
Participant becomes vested in his Executive Benefit, or (2)
the first anniversary of his marriage. The coverage will
remain in effect until the earlier of (1) the date the
Participant becomes unmarried for any reason, (2) the
Participant's date of death, or (3) the Benefit Commencement
Date. Once commenced, the coverage will remain in effect
whether or not the Participant continues in Employment or
continues to participate in the Plan. The Participant who
either does not have a surviving Spouse, or is not vested on
his date of death, will not have any preretirement death
benefit coverage under the Plan.
The Plan will provide the death benefit without any charge for
the cost of coverage and without reduction in the benefit
payable to the Participant or surviving Spouse to account for
the cost of coverage.
30
(b) Amount of Spouse's Preretirement Death Benefit. If the vested
preretirement death benefit described in this Subsection has
an Actuarial Equivalent lump sum value not greater than
$3,500, the Committee will pay the entire benefit to the
surviving Spouse in a lump sum payment as soon after the
Participant's death as practicable.
(1) Death While Actively Employed. If the vested
Participant dies while in active Employment and has a
surviving Spouse, the Plan will pay the following
death benefit to the Spouse. The monthly death
benefit will be an amount equal to 75 percent of the
amount of the Participant's Executive Benefit,
calculated by assuming that the Participant had 15
Years of Benefit Service, using his Final Average
Earnings as of his date of death, and disregarding
the ratio in Subsection 3.1(a)(2), minus the sum of
the preretirement death benefit payable under the
Retirement Plan and the combined family Social
Security benefit, with no reduction for early
payment.
(2) Death After Termination Date and Before Benefit
Commencement Date. If the vested Participant dies
after his Termination Date and before his Benefit
Commencement Date, and has a surviving Spouse, the
Plan will pay the following death benefit to the
Spouse. The monthly death benefit will be an amount
equal to 75-percent
31
of the amount of the Participant's Executive Benefit
that would have been payable to the Participant,
based on his Final Average Earnings and Years of
Benefit Service earned as of his Termination Date,
minus the sum of the preretirement death benefit
payable under the Retirement Plan and the combined
family Social Security benefit. In the event the
surviving Spouse elects to begin receiving benefits
under the Retirement Plan before the date that would
have been the Participant's Normal Retirement Date if
he had survived, the amount of the Executive Benefit
will be paid at the same time and will be reduced by
.25 percent for each month by which the Spouse's
Benefit Commencement Date precedes the date that
would have been the Participant's Normal Retirement
Date.
5.2 Excess Retirement Benefit. In the event the Participant has a vested
Excess Retirement Benefit, dies before his Benefit Commencement Date,
and has a surviving Spouse, the Plan will pay a death benefit to the
Spouse. The death benefit will be an amount equal to the difference
between the amount the surviving Spouse would have received under the
Retirement Plan in the absence of statutory restrictions, and the
amount the Spouse actually receives or is entitled to receive after
applying the restrictions.
5.3 Participation Agreement Benefit. The death benefit payable under the
Participation Agreement will be the amount described in the Agreement.
32
5.4 Excess ESSOP Benefit. Subject to the Participant's advance election, in
the event he has an Excess ESSOP Account balance on his date of death,
the Committee will pay (a) the entire balance in a lump sum, or (b)
annual installments for 2 to 15 years, beginning as of January 1
following the Participant's date of death.
33
ARTICLE 6
Unfunded Top-Hat Plan
6.1 Securing Payment of Benefits. Because the Plan is a top-hat plan, it
will be operated at all times as an unfunded plan as required under
ERISA. However, the Company and each Employer reserve the right to take
reasonable steps to secure the payment of all or part of the benefits
payable under this Plan, to the greatest extent possible without
compromising the unfunded status of the Plan. To the extent not
provided under a rabbi trust, insurance contracts and/or other vehicles
which the Company and/or any Employer may establish at any time to
provide for the security of benefits, the Company and/or each Employer
will pay benefits from its general treasury as they become due. The
Company and/or each Employer may purchase insurance contracts and other
investments in contemplation of benefits becoming payable in the
future.
6.2 Assets Subject to General Creditors. In the event of the insolvency of
any Employer, all assets of the Plan will be subject to the insolvent
Employer's general judgment creditors to the extent that the claims are
enforceable under state or federal law. Assets will be paid from each
affected Employer's general treasury, or other funding vehicle if one
exists, as directed by a valid order from a court having competent
jurisdiction. If directed by such court, the Committee will suspend
benefit payments as necessary to pay such judgment(s).
34
6.3 No Participant Contributions. Participants will neither be required nor
permitted to make contributions to the Plan.
6.4 Exclusive Benefit. Although no Participant or beneficiary will have any
preferred claim or beneficial ownership interest in any Plan assets,
and any rights they have under the Plan will be mere unsecured
contractual rights against the Employers, the Employers, and the
trustee if the Company has established a rabbi trust, will use all Plan
assets exclusively for the benefit of Participants and beneficiaries
except to the extent that their general creditors have prior rights as
described in Section 6.3.
6.5 Taxation. For each fiscal year, each Employer will be entitled to take
an income tax deduction for benefits actually paid that year. Each
Employer will pay annual income taxes on its pro rata share of the
earnings from any rabbi trust or other funding vehicle that may be
established under the Plan, except to the extent that earnings are
exempt because of the nature of the investment, i.e., insurance
contracts, tax-exempt bonds, etc.
35
ARTICLE 7
Amendment and Termination
7.1 Amendment.
(a) Procedure. The Company will have the right to amend the Plan
from time to time. The Executive Compensation Committee of the
Board will determine that an amendment is appropriate, and
cause the amendment to be drafted. Each amendment must be
approved by a majority of the Executive Compensation Committee
members then in office. The Company's President, or officer
designated by the President, will adopt each amendment by
placing his signature thereon.
(b) Prohibited Amendments. No amendment will be permitted which
would have the effect of reducing or eliminating any
Participant's Accrued Benefit determined as of the effective
date of the amendment.
(c) Administrative Changes Without Plan Amendment. The Executive
Compensation Committee of the Board reserves authority to make
administrative changes to this Plan document that do not alter
the minimum qualification requirements, without written
amendment to the Plan.
36
(d) Limited to Active Participants. Except as specifically stated
in the amendment, no amendment will apply to any Participant
whose Termination Date occurred before the effective date of
the amendment.
7.2 Termination of the Plan. The Company expects this Plan to be continued
indefinitely but necessarily reserves the right to terminate the Plan
any time, subject to approval of the Executive Compensation Committee
of the Board. Each Employer reserves the right to terminate its
participation in the Plan at any time by appropriate action of its
board of directors.
37
ARTICLE 8
Administration
8.1 Allocation of Fiduciary Responsibilities. The Plan fiduciaries will
have the powers and duties described below, and may delegate their
duties to the extent permitted under ERISA Section 402.
(a) The Board. The Board members' status as Plan fiduciaries, and
their fiduciary duties, will be limited to (1) the adoption of
a resolution that Employees holding certain job titles will
serve as Benefits Committee members, and (2) the adoption of a
resolution that Employees holding certain job titles will
serve as Investment Council members. To the extent provided in
the Board resolution, an Employee can serve both as a member
of the Benefits Committee and as a member of the Investment
Council.
(b) The Company and the Employers. The Company's and each
Employer's status as a Plan fiduciary, and its fiduciary
duties, will be limited to (1) making contributions (if any)
to the Plan in the amounts determined by the Committee based
on the recommendations of the enrolled actuary, and (2)
executing documents by which the Plan is governed. Officers of
the Company will act on its behalf as specified in the
Company's by-laws, and officers of each Employer will act on
its behalf as specified in the Employer's by-laws.
38
(c) The Executive Compensation Committee of the Board. The
Executive Compensation Committee of the Board will be
responsible for selecting the Employees who will be eligible
to participate in the various portions of the Plan, and for
amending and terminating the Plan under Article 7.
(d) The Benefits Committee. The Benefits Committee will serve as
Plan Administrator.
(1) Appointment and Termination of Office. The Committee
will consist of not less than 3 nor more than 7
individuals who, by authority of the Board resolution
described in Subsection (a), will serve as such by
virtue of their job titles. A Committee member will
lose his status as such when he ceases to hold a job
title by virtue of which he is a Committee member. A
member may resign at any time by written resignation
from his job title, submitted to the Company and to
the Committee. The successor to such job title will
also be the successor Committee member.
(2) Organization of Committee. The Committee will elect a
Chairman from among its members, and will appoint a
Secretary who may or may not be a Committee member.
The Committee may appoint agents who may or may not
be Committee members, as it considers necessary for
the effective performance of its duties,
39
and may delegate to the agents nondiscretionary
powers and duties as it considers expedient or
appropriate. The Committee will fix the compensation
of the agents. Employee Committee members will serve
as such without additional compensation.
(3) Committee Meetings. The Committee will hold meetings
at least annually. A majority of the members then in
office will constitute a quorum. Each action of the
Committee will be taken by a majority vote of all
members then in office, provided that the Committee
will establish procedures for taking written votes
without a meeting.
(4) Powers and Duties. The Committee will have primary
responsibility for administering the Plan, except for
the investment-related duties reserved by the
Investment Council under Subsection (d). The
Committee and the Company employees and other agents
to whom it delegates nondiscretionary duties, will
have all powers necessary to enable it to properly
perform its duties, including but not limited to the
following powers and duties:
(A) Governing Rules. The Committee will be
responsible for adopting rules and
regulations necessary for the performance of
its duties under the Plan.
40
(B) Construction. The Committee will have the
power to construe the Plan and to decide all
questions arising under the Plan.
(C) Rights to Benefits. The Committee will have
discretionary authority to determine the
eligibility of Participants and
beneficiaries to receive benefits and the
amount of benefits to which any Participant
or beneficiary may be entitled under the
Plan, and will enforce the claims procedure
described in Section 8.4.
(D) Employee Data. The Committee will request
from the Company and the Employers complete
information regarding the compensation and
Employment of each Participant and other
facts as it considers necessary from time to
time, and will treat Company and Employer
records as conclusive with respect to such
information; the Committee will maintain
records showing the fiscal operations of the
Plan, and will keep in convenient form the
data required for actuarial valuations.
(E) Payments. The Committee will direct the
payment of benefits from the Company's
general treasury, or from any annuity
contract or trust, or may appoint a
disbursing agent,
41
and will specify the payee, the amount and
the conditions of each payment.
(F) Disclosure. The Committee will prepare and
distribute to the Participants any plan
summaries, notices and other information
about the Plan in such manner as it deems
proper and in compliance with applicable
law.
(G) Application Forms. The Committee will
provide forms for use by Participants in
applying for benefits.
(H) Actuarial Determinations. The Committee will
appoint an enrolled actuary to make annual
actuarial valuations of the Plan's
experience and liabilities, and to prepare
actuarial statements. The Committee will
notify the Employers of the amount of
contributions determined to be necessary to
provide benefits, based on the
recommendations of the enrolled actuary.
(I) Agents. The Committee may delegate any of
its administrative duties to Company
employees and other agents, and may retain
legal counsel, accountants, actuaries,
consultants and such other agents as it
considers necessary to properly administer
the Plan.
42
(J) Reporting. The Committee will cause to be
filed all reports required under ERISA and
the Code.
(e) The Investment Council. The Investment Council will have
primary responsibility for the investment of Plan assets, to
the extent that Employers make contributions to fund future
benefits.
(1) Appointment and Termination of Office. The Investment
Council will consist of not less than 3 nor more than
7 individuals who, by authority of the Board
resolution described in Subsection (a), will serve as
such by virtue of their job titles. An Investment
Council member will lose his status as such when he
ceases to hold a job title by virtue of which he is
an Investment Council member. A member may resign at
any time by written resignation from his job title,
submitted to the Company and to the Investment
Council. The successor to such job title will also be
the successor Investment Council member.
(2) Organization of Investment Council. The Investment
Council will elect a Chairman from among its members,
and will appoint a Secretary who may or may not be an
Investment Council member. The Investment Council may
appoint agents who may or may not be Investment
Council members, as it considers
43
necessary for the effective performance of its
duties, and may delegate to the agents
nondiscretionary powers and duties as it considers
expedient or appropriate. The Investment Council will
fix the compensation of the agents. Employee
Investment Council members will serve as such without
additional compensation.
(3) Investment Council Meetings. The Investment Council
will hold meetings at least annually. A majority of
the members then in office will constitute a quorum.
Each action of the Investment Council will be taken
by a majority vote of all members then in office,
provided that the Investment Council may establish
procedures for taking written votes without a
meeting.
(4) Powers and Duties. The Investment Council will have
primary responsibility for investment of Plan assets,
and all powers necessary to enable it to properly
perform its duties, including but not limited to the
following powers and duties:
(A) Appointment of Rabbi Trustee. The Investment
Council will select and appoint the trustee
for any rabbi or secular trust that it
establishes under the Plan, and may remove
and replace the trustee from time to time as
it considers appropriate. The Council will
determine the portion of Plan
44
assets to be invested by the trustee instead
of the investment manager(s).
(B) Appointment of Investment Managers. The
Investment Council may select and appoint
one or more investment managers from time to
time, and may remove any investment manager.
The Council will determine the portion of
Plan assets to be invested be each
investment manager. To the extent it
considers appropriate, the Council will
direct the investment manager(s) regarding
the allocation of assets among investment
categories and the maintenance of asset
balancing.
(C) Funding Policy. The Investment Council will
maintain and execute a funding policy.
(D) Investment Policy. The Investment Council
will maintain and execute written investment
objectives and guidelines.
(E) Investment Categories. To the extent it does
not delegate such authority to the trustee
and/or the investment manager(s), the
Investment Council will determine the
portion of Plan assets to be invested in
categories such as common and preferred
stocks, bonds, mortgages, real estate,
insurance contracts, etc., and may direct
transfers of
45
Plan assets between investment categories
and between the trustee and/or the
investment managers accordingly.
(F) Investment Performance. The Investment
Council will establish written procedures
for reviewing and evaluating investment
performance, and will regularly review and
evaluate the performance of the investment
manager(s) and the media in which Plan
assets are invested.
(G) Records. The Investment Council will
maintain records of investment and will keep
in convenient form the investment data
required for actuarial valuations and
government reports.
(H) Agents. The Investment Council may delegate
any of its nondiscretionary duties to
Company employees and other agents, and may
retain legal counsel, accountants,
actuaries, consultants and such other agents
as it considers necessary to properly
administer the Plan.
8.2 Expenses. The Committee will determine, in its sole discretion, whether
the expenses incurred in administering the Plan (and rabbi trust if
any) will be paid by the Company (or by the trustee from the trust fund
if any). Expenses include but are not limited to fees and charges of
actuaries, attorneys, accountants, consul-
46
tants, investment managers, and any trustee. The trustee will pay from
the trust fund all expenses directly incurred in connection with the
investment of Plan assets.
8.3 Indemnification. The Company will indemnify and hold harmless the
Committee and the Investment Council and each member and each person to
whom the Committee and the Investment Council has delegated
responsibility under this Article, from all joint and several liability
for their acts and omissions and for the acts and omissions of their
duly appointed agents in the administration of the Plan, except for
their own breach of fiduciary duty and willful misconduct.
8.4 Claims Procedure. The Committee will furnish to each Participant, upon
his retirement, information about the benefits to which he is entitled
under the Plan. The Committee may require any person claiming benefits
under the Plan to submit a written application, together with such
documents, evidence, and information as it considers necessary to
process the claim.
47
ARTICLE 9
Miscellaneous
9.1 Headings. The headings and subheadings in this Plan have been inserted
for convenient reference, and to the extent any heading or subheading
conflicts with the text, the text will govern.
9.2 Construction. The Plan will be construed in accordance with the laws of
the State of South Carolina, except to the extent such laws are
preempted by ERISA and the Code.
9.3 Severability. If any Section, Subsection, or provision of this Plan is
held to be void, unlawful or unenforceable under any applicable State
or federal law, that provision will be severed from the Plan, as
amended if necessary, and the remainder of the Plan will continue in
full force and effect.
9.4 Nonalienation. No benefits payable under the Plan will be subject to
the claim or legal process of any creditor of any Participant or
beneficiary, and no Participant or beneficiary will alienate, transfer,
anticipate or assign any benefits under the Plan.
48
9.5 No Employment Rights. Participation in the Plan will not give any
Employee the right to be retained in the employ of any Employer, or
upon termination any right or interest in the Plan except as provided
in the Plan.
9.6 No Enlargement of Rights. No person will have any right to or interest
in any portion of the Plan except as specifically provided in the Plan.
9.7 Withholding for Taxes. Payments under the Plan will be subject to
withholding for payroll taxes as required by law.
49
IN WITNESS WHEREOF, Sonoco Products Company has caused this amendment and
restatement of Omnibus Benefit Restoration Plan of Sonoco Products Company to be
executed by its duly authorized officer this ____ day of December, 1994, to be
effective as of January 1, 1994, except that certain provisions are effective as
of other dates stated within each such provision.
SONOCO PRODUCTS COMPANY
By:
Title:
ATTEST:
Secretary
Corporate Seal:
50