Exhibit 10.67
SUPPLEMENTAL PENSION PLAN
FOR EXECUTIVES OF
BROWN & WILLIAMSON TOBACCO CORPORATION
(As Amended Through July 29, 2004)
SUPPLEMENTAL PENSION PLAN
FOR EXECUTIVES OF
BROWN & WILLIAMSON TOBACCO CORPORATION
(As Amended Through July 29, 2004)
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..................................................... 1
1.01 Actuarial Basis.................................................. 1
1.02 Basic Plan....................................................... 2
1.03 Company.......................................................... 2
1.04 PIP; PIP Award................................................... 2
1.05 Employer......................................................... 3
1.06 ERISA Excess Plan................................................ 3
1.07 Interest......................................................... 3
1.08 Participant...................................................... 3
1.09 Plan............................................................. 3
1.10 Supplemental Benefit............................................. 3
1.11 Supplemental Salary.............................................. 3
ARTICLE 2. PARTICIPATION................................................... 5
2.01 Participation.................................................... 5
2.02 SERP Trust Individuals........................................... 6
ARTICLE 3. BENEFITS........................................................ 6
3.01 Eligibility...................................................... 6
3.02 Amount of Supplemental Benefit................................... 6
3.03 Dependents' Benefits............................................. 9
ARTICLE 4. METHOD OF PAYMENT............................................... 10
4.01 Payments On or After July 1, 1990................................ 10
4.02 Plan Unfunded.................................................... 10
4.03 Delay in Payment................................................. 10
4.04 Withholding...................................................... 10
ARTICLE 5. AMENDMENT AND TERMINATION....................................... 10
5.01 Right to Amend or Terminate Reserved............................. 10
5.02 Action to Bind Employers......................................... 11
5.03 Change in Basic Plan............................................. 11
ARTICLE 6. ADMINISTRATION.................................................. 11
6.01 Administration................................................... 11
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ARTICLE 7. MISCELLANEOUS................................................... 11
7.01 Payment to Incompetent........................................... 11
7.02 Spendthrift Clause............................................... 11
7.03 Usage............................................................ 11
7.04 Data............................................................. 11
7.05 Separability..................................................... 12
7.06 Right of Discharge Reserved...................................... 12
7.07 Other Benefits Unaffected........................................ 12
ARTICLE 8. EFFECTIVE DATE, ETC............................................. 12
8.01 Effective Date................................................... 12
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SUPPLEMENTAL PENSION PLAN
FOR EXECUTIVES OF
BROWN & WILLIAMSON TOBACCO CORPORATION
(As Amended Through July 29, 2004)
PREAMBLE
Effective January 1, 1991, Brown & Williamson Tobacco Corporation
assumed all liabilities for the Supplemental Pension Plan for Executives of
Brown & Williamson Tobacco Corporation (formerly the Supplemental Pension Plan
for Executives of BATUS Inc. and Brown & Williamson Tobacco Corporation), and
simultaneously restated the Plan to incorporate certain amendments approved by
the Company.
The Plan has been amended from time to time thereafter, to read, as of
July 29, 2004, as set forth herein.
Notwithstanding any such amendment, the right to and amount of any
pension payable to a Participant or beneficiary shall in all events be
determined in accordance with the terms of the Plan as in effect at the time of
termination of employment.
ARTICLE 1.
DEFINITIONS
The following terms when used in this Plan shall have the designated
meaning unless a different meaning is clearly required by the context. Defined
terms in the Basic Plan which are used in this Plan (including, without
limitation, spouse and child) shall have the meanings given to them in the Basic
Plan unless a different meaning is given below or is clearly required by the
context.
1.01 Actuarial Basis.
(a) The term "Actuarial Basis" means a benefit computed on the basis of the
actuarial principles adopted by the Company, subject to subsection (b)
below.
(b) For purposes of determining the present value of the amount payable under
Section 3.02, the following assumptions shall be used [effective October 1,
1995]:
(1) Interest:
(2) with respect to any portion (or all) of the accrued amount for which
the Company has not provided an external source of payment prior to
the time actual payment becomes due under Article 3, the lower of (i)
the average of the monthly interest rates used to determine the
commuted value of pensions under the Basic Plan for the 36 month
period immediately preceding the Participant's termination of
employment, or (ii) the interest rate used to determine the commuted
value of
pensions under the Basic Plan for the month immediately preceding the
Participant's termination of employment.
(3) with respect to any portion (or all) of the accrued amount for which
the Company has provided an alternate source of payment (whether in
trust or otherwise) prior to the time actual payment becomes due under
Article 3, the monthly interest rate used shall be determined pursuant
to paragraph (A) above (but assuming the Participant had terminated
employment as of the date of determination). A separate calculation
shall be made for each such payment, and the interest rate applicable
to each such calculation shall be established at the time of payment,
and shall not be subject to change in the future as it relates to that
payment.
(4) Mortality: the mortality table used under the Basic Plan to determine
the commuted value of pensions at the time present value is
determined.
1.02 Basic Plan. The term "Basic Plan" means the Retirement Plan for Salaried
Employees of Brown & Williamson Tobacco Corporation and Certain Affiliates,
and, as applicable, its predecessor plan.
1.03 Company. The word "Company" means, effective the date of closing (the
"Closing") of the transactions contemplated by the Business Combination
Agreement dated October 27, 2003, between Brown & Williamson Tobacco
Corporation and R.J. Reynolds Tobacco Holdings, Inc. (the "Business
Combination"), Reynolds American Inc., and any successor thereto ("RAI").
Prior to Closing the word "Company" means Brown & Williamson Tobacco
Corporation, and any successor thereto ("B&W"). Effective immediately prior
to Closing, B&W shall be deemed to have withdrawn from and shall no longer
maintain the Plan for its employees.
1.04 PIP; PIP Award.
(a) Except as provided in subsection (b) below, effective January 1, 2002, the
Performance Incentive Plan ("PIP") replaces and supercedes the Executive
Incentive Plan ("EIP"), the Management Incentive Plan ("MIP") and the
Competitive Annual Bonus ("CAB"). A "PIP Award" is an award of incentive
compensation applicable to a Participant for a calendar year and may
include a pension-eligible component. Prior to the year 2002, the CAB award
was not pension eligible; consequently the CAB component of a PIP Award for
and after 2002 is not pension-eligible. By way of example, but not
exclusion, for calendar years commencing on and after January 1, 2002, the
sole annual incentive compensation plan that may include a pension-eligible
component is the PIP, and for calendar years prior to 2002, plans that may
include a pension-eligible component include the EIP and MIP.
(b) The Performance Incentive Plan, described in subsection (a) above, does not
apply to Plan Participants seconded to an affiliate of the Company as of
May 1, 2002. For such Participants, the Management Incentive Plan ("MIP"),
as in effect on December 31, 2001, shall continue to apply for purposes of
calculating Supplemental Salary.
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1.05 Employer. The word "Employer" means Reynolds American Inc., and any
subsidiary or affiliate of the Employer which is approved for inclusion in
the Plan by the Company.
1.06 ERISA Excess Plan. The term "ERISA Excess Plan" means the portion of this
Plan established by the Employer solely for the purpose of paying benefits
based on the provisions of the Basic Plan (or other applicable plan) for
certain employees in excess of the limitations on benefits imposed by
Section 415 of the Internal Revenue Code of 1986, as amended. That portion
of the Plan maintained for such purpose shall be treated as a separate plan
which is an excess benefit plan, as defined by ERISA Section (3)(36).
1.07 Interest. The word "Interest" means the rate of interest established from
time to time by the Company, in its discretion, for deferred PIP account
balances.
1.08 Participant. The word "Participant" means a participant in the Basic Plan
who satisfies the requirements for participation set out in Article 2 of
the Plan.
1.09 Plan. The word "Plan" means the Supplemental Pension Plan for Executives
of Brown & Williamson Tobacco Corporation, as in effect from time to time.
1.10 Supplemental Benefit. The term "Supplemental Benefit" means the benefit
described in Section 3.02 hereof.
1.11 Supplemental Salary.
(a) The term "Supplemental Salary" shall mean the sum of Paragraphs (1) through
and including (4) as follows:
(1) Average PIP Award. Subject to subsections (b) through (e) below, a
Participant's Average PIP Award shall be the greater of:
(A) a Participant's Average PIP Award (whether or not deferred) for
the three performance years immediately preceding the calendar
year in which a Supplemental Benefit becomes payable to the
Participant (or if applicable his spouse or dependents); provided
that if any such Participant has not received a PIP Award for one
or more of such three years, his award for such year shall be
treated as zero dollars; or
(B) the amount obtained by multiplying the Participant's annual rate
of salary at the time a Supplemental Benefit becomes payable to
the Participant (or if applicable his spouse or dependents) by
the EIP/MIP percentage that was, or would have been, applicable
to such Participant's current position or level (i.e. the
Participant's employment position or level at the time the
Supplemental Benefit becomes payable) at the "Commendable" level
for the 2001 performance year.
Notwithstanding the foregoing, with respect to a Participant who
enters into regular employment (as defined in Section 2.01(b)(2)) with
RAI after Closing (as defined in Section 1.03), a Participant's
Average PIP Award shall be the greater
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of (i) the amount calculated under paragraph (B) above, or (ii) an
amount equal to the Participant's base annual compensation rate at the
time of employment termination with RAI (or an affiliate), multiplied
by B&W's average performance rating percentage for 2001, 2002 and 2003
applicable to such Participant.
(2) Excess Pensionable Salary. The excess of the amount that would have
been the Participant's pensionable salary under the Basic Plan, but
for the limitations of Section 401(a)(17) of the Internal Revenue Code
of 1986 or any similar provision of subsequent law, over the
Participant's actual pensionable salary under the Basic Plan.
(3) Deferred Compensation. All amounts that would have constituted
pensionable salary under the Basic Plan but for the fact that the
receipt of these amounts was deferred, including without limitation,
amounts deferred under the Deferred Compensation Plan for Executives
of Brown & Williamson Tobacco Corporation, as amended from time to
time.
(4) Special Contractual Arrangements. Effective for special contractual
arrangements entered into on or after January 1, 1993, and to the
extent provided in or required by any such arrangement, all amounts
that would have constituted pensionable salary under the Basic Plan,
but for the limits of Section 401(a)(17) of the Internal Revenue Code
of 1986, or any similar provision of subsequent law, over the sum of
the Participant's pensionable salary determined under paragraphs (1),
(2) and (3) above.
(b) For purposes of subsection (a)(1) above, disability shall be deemed to
occur on the date the Participant first commences a period of absence that
leads to a determination of disability under the Basic Plan.
(c) Except as specifically provided by written agreement between the Company
and a Participant, Supplemental Salary shall include an Average PIP Award
only for Participants who were Participants in the Plan on December 31,
1990, and who continue to be employed in an PIP-eligible position
thereafter (or, in the event the Company terminates or modifies the PIP or
similar annual incentive or bonus program in a manner described in
subsection (e) below, were in eligible PIP positions at the time of such
termination or modification). Subject to any such agreement, Supplemental
Salary shall not include an Average PIP Award for a Participant who:
(1) was not a Participant in the Plan on December 31, 1990; or
(2) becomes a Participant on or after January 1, 1991, whether as a result
of initial employment, reemployment following a termination of
employment (voluntary, involuntary, disability or otherwise),
promotion, transfer or otherwise.
(d) The Average PIP Award for a Participant who becomes ineligible to
participate in PIP for any reason prior to termination of employment,
disability or death (other than by reason of the termination of the Plan or
modification of the PIP or similar annual incentive or bonus program in a
manner described in subsection (e) below) shall be calculated
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pursuant to subsection (a) above, by assuming the Supplemental Benefit of
such Participant is or becomes payable in the year in which such
Participant first becomes ineligible to so participate.
(e) If the EIP/MIP percentages in effect for the 2001 performance year are
amended, terminated or replaced by a plan or program that has lower payout
targets or opportunities than the EIP/MIP in effect as of January 1, 2001,
e.g. if, with respect to a performance year subsequent to 2001, the
percentage award applicable to the "Commendable" level for a Participant is
lowered by the Company below the percentage award applicable to such
Participant at the "Commendable" level for 2001, such Participant's Average
PIP Award (or, if applicable, Average EIP/MIP Award), shall be determined
and paid out at the time of such amendment, termination or replacement, and
shall be the greater of (i) the amount determined under subsection
(a)(1)(A) above, or (ii) the amount obtained by multiplying the
Participant's rate of salary at the time of such amendment, termination or
replacement by the EIP/MIP percentage applicable to such Participant at the
"Commendable" level for the 2001 performance year.
ARTICLE 2.
PARTICIPATION
2.01 Participation.
(a) Any participant in the Basic Plan who (1) is eligible to participate in the
PIP (prior to January 1, 1991), (2) is eligible to and elects to defer
pensionable salary under the Deferred Compensation Plan for Executives of
Brown & Williamson Tobacco Corporation, (3) receives compensation that
would be included in the Participant's pensionable salary under the Basic
Plan but for the limitations of Section 401(a)(17) of the Internal Revenue
Code of 1986 or any similar provision of subsequent law, or (4) would be
eligible for an additional benefit under the Basic Plan but for the
limitations of Section 415 of the Internal Revenue Code of 1986 or any
similar provision of subsequent law, shall automatically become a
Participant in this Plan.
(b) Effective as of Closing (as defined in Section 1.03), the following classes
of employees shall be excluded from eligibility to participate in the Plan:
(1) any individual who was not an employee of the Company (as defined in
Section 1.03) immediately prior to Closing; and
(2) any individual who was not a participant in (or an Eligible Employee
with respect to and as defined in) the Basic Plan at the time he or
she entered into "regular employment" with RAI at and after Closing.
For this purpose, the term "regular employment" means full- or
part-time ongoing employment with RAI that is not classified by RAI as
transitional employment. An employee is considered to be in
"transitional employment" if his or her employment is transferred to
RAI in connection with the Business Combination and the employee is
employed within the B&W Division of RAI for a limited period of time
(a "transition period").
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2.02 SERP Trust Individuals.
(a) Pursuant to the Business Combination Agreement dated October 27, 2003,
between Brown & Williamson Tobacco Corporation and R.J. Reynolds Tobacco
Holdings, Inc. (the "BCA"), (i) Liabilities (as defined in the formation
agreement under the BCA (the "Formation Agreement")) under the Plan were
retained by Brown & Williamson Tobacco Corporation (or an affiliate) to the
extent they pertain or relate to the service and/or accrued benefits of the
SERP Trust Individuals (as defined in Section 1.01 of the Formation
Agreement and listed on Schedule 1.01(b) thereto as R. Baker, C.D. Brown,
W. Carpenter, C. Dawson, M. DiCio, J. Eckmann, H. Frick, J. Graas, S. Ivey,
M. Kovatch, R. Lewis, M. McGraw, R. Miller, C. Schoenbachler, D. Snyder, R.
Stowe, R. Van Hess, and P. Wessel) prior to the Employment Transfer Time
(as defined in the Formation Agreement), calculated on the assumption that
each SERP Trust Individual's employment terminated immediately prior to the
Employment Transfer Time, and (ii) rights in the assets of the trusts
established pursuant to the Secular Trust Agreements with the SERP Trust
Individuals (as defined in Section 1.01 of the Formation Agreement and
listed on Schedule 1.01(b) thereto) were retained by Brown & Williamson
Tobacco Corporation to the extent such assets were held in an account
thereunder for the purpose of providing a fund to pay benefits under the
Plan (defined in the Secular Trust Agreement as the "SERP Account").
(b) Notwithstanding any provision of the Plan to the contrary, effective as of
the Employment Transfer Time the Plan (and the Company) shall have no
liability for any Liability described above (nor shall the Company or the
Plan have a claim to any Assets related thereto). To the extent a benefit
is payable under the Plan to any SERP Trust Individual for periods of
service performed for the Company after the Employment Transfer Time, such
benefit shall take into account and be reduced by the liability retained by
Brown & Williamson Tobacco Corporation referred to in subsection (a) above
to the extent necessary to prevent a duplication of benefit payments.
ARTICLE 3.
BENEFITS
3.01 Eligibility. A Participant shall be entitled to receive a Supplemental
Benefit under this Plan only upon [effective October 1, 1995]: (1)
termination of employment with a vested benefit under the Basic Plan, (2)
receipt of a disability pension under the Basic Plan or (3) death.
3.02 Amount of Supplemental Benefit.
(a) The amount of a Participant's Supplemental Benefit shall be equal to the
actuarial value of the benefit to which the Participant would be entitled
under the Basic Plan (without regard to Section 3.03 thereof) and the ERISA
Excess Plan in the aggregate (determined after applying Section 3.02 of the
Basic Plan), with the following adjustments:
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(1) the Participant's Supplemental Salary were included in his or her
pensionable salary under the Basic Plan, or in the case of a
Participant receiving a disability pension under the Basic Plan, were
included in his or her salary at the time of disability,
(2) any additional pensionable and qualifying service granted under any
special contractual arrangement entered into on or after January 1,
1993, were included in his or her pensionable and qualifying service
under the Basic Plan; and
(3) any incremental benefit granted pursuant to subsection (e) of this
Section 3.02, offset by the actuarial value of the benefit payable
under the Basic Plan.
(b) Notwithstanding subsection (a) above, if a Participant becomes ineligible
to participate in PIP for any reason after having become a Participant
hereunder, that portion of such a Participant's Supplemental Benefit which
is based on an Average PIP Award (if any) shall be calculated by
disregarding pensionable service (as defined in the Basic Plan) earned
during and after the year such Participant first became ineligible to
participate in PIP.
(c) If the Company provides an alternate source of payment for all or any
portion of a Participant's accrued or projected Supplemental Benefit at any
time before or on (or as of) the date the Participant becomes entitled
thereto under Section 3.01, and payment to such alternate source results in
the immediate taxation thereof, such accrued or projected Supplemental
Benefit shall be reduced by the estimated tax liability attributable
thereto (the tax rate to be used for this calculation shall be an assumed
retiree tax rate for the Participant, as determined by the Company in its
sole discretion) (the "after-tax benefit"), and such estimated after-tax
benefit shall be increased by the tax paid with respect thereto; provided
that in no event shall such prior payment or payments be deemed to be a
discharge of the Company's obligation for all or any part of the
Supplemental Benefit due under this Article 3 prior to the time the
Participant becomes entitled to the payment thereof under Section 3.01. The
amount of Supplemental Benefit due under this subsection (c) shall be paid
as provided in Section 4.01(b).
(d) A Participant who (i) is a corporate Vice President on, or as of, July 15,
1997, (ii) is or becomes entitled to payment of a Supplemental Benefit
under Section 3.01, and (iii) whose benefit is provided (in part or
entirely) through an alternate source of payment as described in subsection
(c) above, shall, at the time such Supplemental Benefit first becomes
payable under the Plan, be entitled to an additional cash amount calculated
as follows: the ratio of the "Projected Installment Sum" over the
"Projected Employee Grantor Trust Sum", expressed as a percentage, minus
one (1), with the resulting percentage multiplied by the Supplemental
Benefit (after adjustment to an after-tax value at the time the benefit
first becomes payable). Such additional cash amount shall, at the time of
payment, be increased by an amount sufficient to pay income taxes thereon
(inclusive of taxes on the increase). For purposes of this subsection (d),
the following terms have the following meanings:
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(1) "Projected Installment Sum" means the sum of the after-tax present
value of each projected installment payment of the Supplemental
Benefit, assuming that the Supplemental Benefit is paid in 10 annual
installments, the first being paid on the first anniversary of the
Participant's termination of employment. The amount of each projected
annual installment shall be determined by multiplying the Account
balance (including principal and accumulated notional earnings) as of
the date the installment payment is due by a fraction, the numerator
of which is one (1) and the denominator of which is the number of
annual payments (including the payment then due) remaining to be paid;
and by then reducing such amount by the projected tax effect related
to such payment (State and local tax rates shall be taken into account
only to the extent the State or locality of the Participant's
residence, at the time the Participant first becomes entitled to
payment under Section 3.01, imposes taxes on such payments). Notional
earnings shall apply monthly to the unpaid Account balance as follows:
the monthly rate of return shall be the greater of (i) the monthly
equivalent of the annual yield on 10 year Treasury constant maturities
as quoted in the Federal Reserve Statistical Release, as of the date
of Supplemental Benefit entitlement (as set forth in Section 3.01) or
(ii) the average of such monthly rates for the 36 month period ending
with the month immediately preceding the month of such Supplemental
Benefit entitlement.
(2) "Projected Employee Grantor Trust Sum" means the sum of the present
value of each projected installment payment of the Supplemental
Benefit (after adjustment of the said Supplemental Benefit to an
after-tax value at the time the benefit first becomes payable),
assuming that the said adjusted Supplemental Benefit is paid in 10
annual installments in the manner described in paragraph (1) above
(except that notional earnings on the unpaid balance shall be applied
after adjustment for taxes).
Such amount shall be paid as provided in Section 4.01(b) as soon as
after the Participant becomes entitled a Supplemental Benefit under
Section 3.01 above.
(e) A Participant who is eligible to participate in the Plan by virtue of his
or her eligibility to participate in the PIP prior to January 1, 1991, or
whose employment classification is at the AVP (or equivalent) level or
above, shall, unless otherwise specifically excluded from eligibility for
the benefit described in this subsection (e) through a separate written
agreement between the Company and the Participant, be entitled to elect to
receive an incremental Supplemental Benefit equal to the incremental
benefit provided under Section 4.04 of the Basic Plan and adjusted using
the same methodology described in subsection (c) (except that the
Participant's current tax rate shall be used to calculate the amount of
after-tax benefit attributable to such incremental benefit), subject in all
events to the same terms, conditions and exclusions of said Basic Plan
Section 4.04 that apply to participants therein (including without
limitation age and service requirements and the exclusions listed in items
(1) through (5) of subsection (a) thereof). The incremental Supplemental
Benefit payable under this subsection (e) shall be paid as provided in
Section 4.01(b).
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(f) This subsection (f) shall apply only to Participants who are entitled to a
Supplemental Benefit by virtue of participation in SERIB (as such acronym
is defined in Section 2.01(b)) and whose Release Date thereunder is August
1, 2001 or later. The cash value of a Supplemental Benefit to which any
such Participant is entitled shall be calculated as of February 1, 2001,
and at the Participant's employment termination date on or after August 1,
2001. The Participant shall be entitled to the greater of the two
calculations. Such amount shall be paid as follows:
(1) Payments to Participants whose benefit is paid to an alternate source
of payment (as described in Section 3.02(c)) shall be made directly to
such alternate source of payment. An initial deposit of the benefit
due shall be made concurrent with other payments to such alternate
source in January, 2001, based on the Participant's projected Release
Date on or after August 1, 2001. If required, any additional amounts
due will be paid upon actual termination of employment.
(2) Payments to all other Participants may be made as soon as practicable
after July 1, 2001, based on the value of the Supplemental Benefit as
of February 1, 2001, irrespective of whether the Participant has
actually terminated employment (subject to any election by a
Participant to defer payment). If required, any additional amounts due
will be paid upon actual termination of employment.
3.03 Dependents' Benefits.
(a) If dependents' benefits are payable under Article 8 of the Basic Plan to
the surviving spouse or child of a retired Participant who had not yet
received payment of benefits under Section 4.01, or of a Participant who
died during employment (but not a Participant who terminated employment
prior to retirement with vested rights, whether or not payment of such
Participant's pension had begun), such spouse or child shall be entitled to
a Supplemental Benefit equal to the additional benefit to which he would be
entitled under the Basic Plan and the ERISA Excess Plan in the aggregate if
the Participant's Supplemental Salary were included in his pensionable
salary as defined in the Basic Plan (subject to the restrictions on
pensionable service set forth in Section 3.02(b) hereof, if applicable to
the Participant).
(b) A Supplemental Benefit payable under subsection (a) above shall be paid in
a single cash payment, determined on an Actuarial Basis, as soon as
practicable after the Participant's death.
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ARTICLE 4.
METHOD OF PAYMENT
4.01 Payments On or After July 1, 1990.
(a) Except as provided in subsection (b) hereof, the aggregate benefits to
which a Participant is entitled under this Plan shall be paid in a single
cash payment, determined on an Actuarial Basis, and such payment shall be
made as soon as practicable after the Participant becomes entitled thereto
under Section 3.01. Such payment shall be in full discharge of all
obligations under this Plan with respect to such Participant (including the
Participant's spouse and children).
(b) Any portion of a Supplemental Benefit, not previously paid to the alternate
source of payment referred to in Section 3.02(c), that is payable pursuant
to Section 3.02(c) or (e), or both (c) and (e), shall be paid as soon as
practicable after the Participant becomes entitled thereto under Section
3.01 in a single cash payment to such alternate source of payment. Such
payment shall be in full discharge of all obligations under this Plan with
respect to such Participant (including the Participant's spouse and
children).
(c) In the case of such a Participant who is entitled to a disability pension
under the Basic Plan, the single cash payment shall be determined by
assuming that the Participant will continue to be entitled to receive a
disability pension under the Basic Plan until his death.
4.02 Plan Unfunded. All benefit payments under the Plan shall be made directly
by the Employer out of its general assets.
4.03 Delay in Payment. If payment of benefits under the Basic Plan in respect
of a Participant or his spouse or child begins prior to determination of
the PIP award for the previous calendar year, payment of his Supplemental
Benefit (if any) shall be delayed until the amount of such prior year's PIP
award is determined. Upon such a determination, the Supplemental Benefit
shall be paid in an amount retroactive to the date that payment of benefits
under the Basic Plan began. Interest shall not accrue, nor be or become
payable, with respect to such retroactive payments.
4.04 Withholding. All payments under the Plan shall be subject to any
applicable withholding requirements imposed by any tax or other law.
ARTICLE 5.
AMENDMENT AND TERMINATION
5.01 Right to Amend or Terminate Reserved. The Company may at any time amend
the Plan in any respect or terminate the Plan. However, no such amendment
or termination shall deprive any Participant of any accrued benefit to
which such Participant has a nonforfeitable right (determined in accordance
with the rules of the Plan in effect immediately prior to the date of such
amendment or termination), other than for the
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purpose of providing an offset for additional governmental benefits or for
additional benefits provided by an Employer.
5.02 Action to Bind Employers. By adoption of the Plan, each corporation
included with the Employer designates the Company as its agent to
administer the Plan in accordance with Article 6 hereof. The Company shall
have the further right to amend or terminate the Plan and furnish written
notice of such action and a copy of any such amendment to any such
corporation, whereupon such amendment or termination shall become binding
upon such corporation.
5.03 Change in Basic Plan. If the Basic Plan and ERISA Excess Plan shall be
amended to change in any way the benefits applicable to any Participant,
spouse, or child, or shall be replaced in whole or in part by any successor
plan, the provisions of the Plan shall apply based on the provisions of the
Basic Plan and/or ERISA Excess Plan as so amended, or such successor plan,
which are applicable to such Participant, spouse or child unless otherwise
provided by the Company.
ARTICLE 6.
ADMINISTRATION
6.01 Administration. The Company, through its duly designated agents, shall
make all determinations required of it by the terms of the Plan, and its
constructions and interpretations of the Plan, as well as its
determinations as to rights and obligations under the Plan, shall be final
and binding upon all persons.
ARTICLE 7.
MISCELLANEOUS
7.01 Payment to Incompetent. If any person entitled to benefits under this Plan
shall be a child or shall be either physically or mentally incompetent in
the judgment of the Company, such benefits may be paid to the person to
whom the corresponding benefits under the Basic Plan are paid under Section
8.06(d) or 14.06 thereof, whichever is applicable.
7.02 Spendthrift Clause. No benefit, distribution or payment under the Plan may
be anticipated, assigned (either at law or in equity), alienated or subject
to attachment, garnishment, levy, execution or other legal or equitable
process.
7.03 Usage. Whenever applicable, the masculine gender, when used in the Plan,
will include the feminine gender, and the singular will include the plural.
7.04 Data. Any Participant entitled to benefits under the Plan must furnish to
the Company such documents, evidence or information as the Company
considers necessary or desirable for the purpose of administering the Plan,
or to protect the Company; and it is a condition of the Plan that each such
Participant must furnish promptly true and complete
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data, evidence or information and sign such documents as the Company may
require before any benefits become payable under the Plan.
7.05 Separability. If any provision of the Plan is held invalid or
unenforceable, its invalidity or unenforceability will not affect any other
provisions of the Plan, and the Plan will be construed and enforced as if
such provision had not been included therein. Captions. The captions
contained herein and the table of contents prefixed hereto are inserted
only as a matter of convenience and for reference and in no way define,
limit, enlarge or describe the scope or intent of the Plan nor shall, in
any way, affect the Plan or the construction of any provision thereof.
7.06 Right of Discharge Reserved. The establishment of the Plan shall not be
construed to confer upon an employee or Participant any legal right to be
retained in the employ of the Employer or give any employee or any other
person any right to benefits, except to the extent expressly provided for
hereunder. All employees will remain subject to discharge to the same
extent as if the Plan had never been adopted, and may be treated without
regard to the effect such treatment might have upon them under the Plan.
7.07 Other Benefits Unaffected. Nothing in this Plan shall be construed to
require that a Participant's Supplemental Salary or PIP awards be taken
into account in determining his benefits under the Employer's life
insurance plan, profit-sharing plans, death-in-service payments (including
payments under Section 9 of the Basic Plan), or any other benefit program.
ARTICLE 8.
EFFECTIVE DATE, ETC.
8.01 Effective Date. This Plan shall be effective as of January 1, 1981. No
benefits shall be payable under the Plan in respect of employees who
retired, terminated employment or died prior to such date, or to their
spouses or children.
* * * * *
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