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EXHIBIT 10(k)
UNFUNDED SUPPLEMENTAL BENEFIT PLAN
FOR SALARIED EMPLOYEES
Vulcan Materials Company
January 29, 1999
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CONTENTS
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Article 1. Establishment and Purpose
Article 2. Definitions
Article 3. Administration
Article 4. Eligibility and Participation
Article 5. Supplemental Thrift Benefits
Article 6. Supplemental Retirement Benefits
Article 7. Rabbi Trust
Article 8. Change in Control
Article 9. Beneficiary Designation -- Supplemental Thrift Benefits
Article 10. Withholding Taxes
Article 11. Amendment and Termination
Article 12. Miscellaneous
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VULCAN MATERIALS COMPANY
UNFUNDED SUPPLEMENTAL BENEFIT PLAN FOR SALARIED EMPLOYEES
ARTICLE 1. ESTABLISHMENT AND PURPOSE
1.1 ESTABLISHMENT. Vulcan Materials Company, a New Jersey corporation,
hereby amends and restates, effective as of January 29, 1999 (the "Effective
Date"), the Vulcan Materials Company Unfunded Supplemental Benefit Plan for
Salaried Employees (the "Plan").
1.2 PURPOSE. The primary purpose of the Plan is to make up for the
reduction in benefits attributable to the tax-qualified plan limits of the
Code, including Section 401(a)(17) and Section 415, and as a result of elective
deferrals under the Vulcan Materials Company Executive Deferred Compensation
Plan.
ARTICLE 2. DEFINITIONS
2.1 DEFINITIONS. Whenever used herein, the following terms shall have the
meanings set forth below, and when the meaning is intended, the term is
capitalized:
(a) "Alternate Matching Contribution" means, with respect to
any Participant, an amount equal to (i) the Matching
Contribution that would have been made to the Investment
Account (as such term is defined in the Thrift Plan) of
the Participant for a given month were it not for the
application of such Limitations, minus (ii) the Matching
Contribution made to the Investment Account of such
Participant for such month, after application of the
Limitations.
(b) "Board" or "Board of Directors" means the Board of
Directors of the Company.
(c) "Change in Control" means:
(1) the acquisition by any person, entity or
"group," within the meaning of Section 13(d)(3) or
(14)(d)(2) of the Exchange Act (excluding for this
purpose, any employee benefit plan of the Company or any
of its subsidiaries which acquires beneficial ownership of
voting securities of the Company), of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more of either the then
outstanding shares of Common Stock or the combined voting
power of the Company's then outstanding voting securities,
in one transaction or a series of transactions; provided,
however, that, if prior to such an acquisition, a majority
of the Continuing Directors determines that such
acquisition shall not, for purposes of the Plan, be deemed
a Change in Control, such acquisition shall not constitute
a Change in Control hereunder;
(2) individuals who, as of the Effective Date,
constitute the Board (the "Continuing Directors") cease
for any reason to constitute at least a majority of the
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Board, provided that any person becoming a director of the
Company subsequent to the Effective Date whose election,
or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the
Continuing Directors (other than an election or nomination
of an individual whose initial assumption of office is in
connection with an actual or threatened solicitation with
respect to the election or removal of directors of the
Company, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall
be, for purposes of the Plan, considered as though such
person were a Continuing Director; or
(3) approval by the Board of (i) a merger,
consolidation or reorganization of the Company in which,
as a consequence of the transaction, either the Continuing
Directors do not constitute a majority of the directors of
the continuing or surviving corporation or any person,
entity or "group," within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act, controls 25% or more of
the combined voting power of the continuing or surviving
corporation; (ii) any sale, lease or other transfer, in
one transaction or a series of transactions, of all or
substantially all of the assets of the Company; or (iii)
any plan or proposal for the liquidation or dissolution of
the Company; provided, however, that, if at the time of
such approval, a majority of the Continuing Directors
determines that such merger, consolidation,
reorganization, sale, lease, other transfer, liquidation
or dissolution shall not, for purposes of the Plan, be
deemed a Change in Control, such transaction shall not
constitute a Change in Control hereunder, and, provided
further, that, if a majority of the Continuing Directors
so determines, a Change in Control shall not be deemed to
occur until the consummation of any such transaction.
(d) "CEO" means the Chief Executive Officer of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Committee" means the Compensation Committee of the Board
(or any other committee designated by the Board that is
eligible to administer the Plan in accordance with Rule
16b-3 under the Exchange Act).
(g) "Company" means Vulcan Materials Company and also includes
any Employing Company (as such term is defined in the
Retirement Plan).
(h) "Company Stock" means the common stock of the Company.
(i) "Disability" shall have the meaning ascribed to such term
in the Company's long-term disability plan or, if no plan
is then in effect, shall mean the determination by the
Committee that the physical or mental condition of a
Participant renders such Participant unable to carry out
his or her duties and obligations to the Company.
(j) "Early Retirement" shall have the same meaning as defined
under the Retirement Plan.
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(k) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
(l) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(m) "Limitations" means:
(i) the limitations set forth in Section 415 of the Code;
(ii) the dollar limit imposed by Section 401(a)(17) of the
Code on the amount of compensation which may be taken into
account under the Thrift Plan and the Retirement Plan; and
(iii) the reduction in the compensation that is taken into
account under the Thrift Plan and the Retirement Plan
(determined without regard to the dollar limit imposed by
Section 401(a)(17) of the Code) to the extent that the
reduction is attributable to the Participant's election to
defer such compensation on a nonqualified basis under
Section 5.1 of the Vulcan Materials Company Executive
Deferred Compensation Plan.
(n) "Matching Contribution" shall have the same meaning as
defined under the Thrift Plan.
(o) "Normal Retirement Date" shall have the same meaning as
defined under the Retirement Plan.
(p) "Participant" means any key management employee of the
Company who has been approved by the Committee for
participation in the Plan under Section 4.1.
(q) "PBGC" means the Pension Benefit Guaranty Corporation.
(r) "Plan Year" means the period of 12 consecutive months
beginning each January 1 and ending December 31.
(s) "Rabbi Trust" means a grantor trust, as described in
Section 677 of the Code, that is established by the
Company as provided in Article 7.
(t) "Rabbi Trust Agreement" means the instrument establishing
the Rabbi Trust, as such instrument may be amended from
time to time.
(u) "Retirement Plan" means the Retirement Income Plan for
Salaried Employees of Vulcan Materials Company, as the
same may be from time to time amended.
(v) "Supplemental Retirement Benefits" means the benefits that
are payable under Sections 6.1, 6.2, 6.3 or 6.4 of the
Plan.
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(w) "Supplemental Thrift Benefits" means the benefits that are
payable under Article 5 of the Plan.
(x) "Termination of Employment Service" shall have the same
meaning as defined under the Retirement Plan.
(y) "Termination Due to Disability" of a Participant is deemed
to have occurred on the date that the Committee determines
the Disability of the Participant to be total and
permanent.
(z) "Thrift Plan" means the Vulcan Materials Company Thrift
Plan for Salaried Employees, as the same may be from time
to time amended.
(aa) "Vested Benefit" shall have the same meaning as defined
under the Retirement Plan.
(bb) "Vesting Date" shall have the same meaning as defined
under the Retirement Plan.
2.2 GENDER AND NUMBER. Except where otherwise indicated by the context,
any masculine term shall include the feminine, the plural shall include the
singular, and the singular shall include the plural.
ARTICLE 3. ADMINISTRATION
3.1 THE COMMITTEE. The Plan shall be administered by the Committee. In no
event shall any member of the Committee be a Participant.
3.2 AUTHORITY OF THE COMMITTEE.
(a) Subject to the terms of the Plan, the Committee shall have
full power and discretionary authority (i) to determine the terms and
conditions of each Participant's participation in the Plan, (ii) to construe
and interpret the Plan and any agreement or instrument entered into under the
Plan, (iii) to establish, amend, and waive rules and regulations for the Plan's
administration, (iv) subject to the provisions of Article 11, to amend the Plan
and any agreement or instrument entered into under the Plan or to terminate the
Plan, (v) to appoint and remove the trustee and the recordkeeper for the Rabbi
Trust, and to direct the trustee and the recordkeeper with respect to their
duties under the agreements pertaining to the Rabbi Trust, and (vi) to make any
other determinations that may be necessary or advisable for the administration
of the Plan.
(b) To the extent permitted by law, the Committee (i) may
delegate any or all of its authority granted under the Plan to one or more
executives of the Company (provided that no executive of the Company who is a
Participant shall exercise any authority with respect to his own participation
in the Plan) and (ii) may designate one or more individuals who are not
Participants (but who may be employees of the Company) to carry out ministerial
duties related to the administration of the Plan, except that the Committee
shall not delegate responsibility for any matter involving a person subject to
Section 16 of the Exchange Act if a decision by the Committee as to such matter
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would have the effect of exempting a transaction under the Plan from the
application of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 or any
successor rule thereunder.
3.3 DECISIONS BINDING. All determinations and decisions of the Committee
(or of any person to whom the Committee has delegated its authority) under the
Plan, including questions of construction and interpretation, shall be final,
conclusive, and binding on the employees of the Company, the Participants and
their beneficiaries and estates. Whenever the Plan authorizes the Committee or
any other person to exercise discretion with respect to any matter, such
discretion may be exercised in the sole and absolute discretion of the
Committee or such person, subject only to the terms of the Plan and applicable
requirements of law.
ARTICLE 4. ELIGIBILITY AND PARTICIPATION
4.1 ELIGIBILITY. Persons eligible to participate in this Plan shall be
limited to full-time, salaried employees of the Company, who are determined to
be "key employees" by the CEO and who are approved for participation by the
Committee. Further, to be eligible, an employee must be among a select group of
management or highly compensated employees of the Company, such that the Plan
qualifies for a "top hat" exemption under Title I of ERISA, as further
described in Section 12.3 herein.
4.2 PARTICIPATION.
(a) Unless otherwise determined by the Committee, Participants in
the Plan shall be eligible to receive both Supplemental Thrift Benefits and
Supplemental Retirement Benefits. Employees who have been approved for
participation in the Plan shall be notified in writing of such approval as soon
as administratively practicable thereafter.
(b) Subject to the following sentence, in the event a Participant
no longer meets the eligibility requirements for participation in the Plan,
such Participant shall retain all the rights of a Participant under the Plan,
except for (i) the right to receive further Alternative Matching Contributions
and (ii) the right to accrue additional Supplemental Retirement Benefits. If a
Participant no longer falls within a select group of management or highly
compensated employees of the Company, the Committee shall have the right to
distribute to the Participant in cash all of the Participant's benefits
previously accrued under the Plan.
ARTICLE 5. SUPPLEMENTAL THRIFT BENEFITS
5.1 PARTICIPANT ACCOUNTS.
(a) The Company shall establish and maintain a separate bookkeeping
account for the Alternative Matching Contributions, and the investment returns
thereon, of each Participant (a "Supplemental Thrift Benefits Account
Balance"). Each Participant shall be furnished with a statement of his account
balance at least annually.
(b) The establishment and maintenance of such accounts by the Company
shall not be construed as entitling any Participant to any specific assets of
the Company. The rights of
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Participants to receive any distribution under the Plan shall be an unsecured
claim against the general assets of the Company.
5.2 ALTERNATIVE MATCHING CONTRIBUTIONS. If under the Thrift Plan a
Matching Contribution to a Participant is reduced by the application of the
Limitations, such Participant shall be entitled to have an Alternative Matching
Contribution credited to the Participant's Supplemental Thrift Benefits Account
Balance. Such credit shall be made at the same time as the Matching
Contribution (as so reduced) is made to the Participant under the Thrift Plan.
5.3 INVESTMENT RETURN.
(a) Each Participant's Supplemental Thrift Benefits Account Balance under
the Plan shall be deemed invested, at the Participant's election, in any
investment funds that are available for the investment of the Participant's
Matching Contributions Account under the Thrift Plan. A Participant shall make
an investment election (or change a previous election) in writing in a manner
acceptable to the Committee, and the Committee may adopt such rules and
procedures for the deemed investment of Participants' Supplemental Thrift
Benefits Account Balances as the Committee considers necessary or appropriate.
An investment election shall be effective for all amounts subsequently credited
to the Participant's Supplemental Thrift Benefits Account Balance until the
Participant makes a new investment election. If a Participant has not made an
investment election, the Participant's Supplemental Thrift Benefits Account
Balance shall be deemed invested and reinvested in the same proportions among
such investment funds as is the Matching Contributions Account of the
Participant under the Thrift Plan, subject to such restrictions and limitations
as the Committee may deem necessary or appropriate.
(b) Each Participant shall be entitled to an investment return
based on the deemed investment of the Participant's Supplemental Thrift
Benefits Account Balance, which shall be adjusted at such times and in such
manner as the Committee deems appropriate to reflect the investment results of
the investment funds in which such balance is deemed invested.
(c) The Company shall have no obligation to invest any amounts in
the investment funds in which the Supplemental Thrift Benefits Account Balances
of Participants are deemed invested.
5.4 CHARGES AGAINST ACCOUNTS. All payments made to a Participant under
the Plan shall be charged against such Participant's Supplemental Thrift
Benefits Account Balance when and as made.
5.5 DISTRIBUTIONS.
(a) Unless the Committee shall authorize another form of payment,
a Participant's Supplemental Thrift Benefits Account Balance shall be
distributed to the Participant, at the election of the Participant, in the form
of (i) a single lump-sum cash payment or (ii) installments over a period of ten
years. The Participant shall irrevocably elect a form of payment within 30
calendar days after he first becomes eligible to participate in the Plan (or,
if later, within 30 days after the date of the amendment adding the installment
option to the Plan). If no such election is made, the Participant's
Supplemental Thrift Benefits Account Balance shall be paid in a single lump-sum
cash payment.
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Such distribution shall be made or such distributions shall commence within 30
calendar days after the Participant's Termination of Employment Service or
Termination Due to Disability.
(b) Notwithstanding that a Participant may have elected a single
lump-sum payment with respect to his Supplemental Thrift Benefits Account
Balance pursuant to paragraph (a), such Participant may, at any time at least
one year prior to the payment date, petition the Committee to allow the payment
to be changed to a ten-year installment payout. The Committee may allow or
refuse such request.
(c) If the Company fails to make any payment due under this
Article 5 within 90 days after it first becomes due, the payment shall be made
from the Rabbi Trust (to the extent assets in the Rabbi Trust are available to
make the payment).
ARTICLE 6. SUPPLEMENTAL RETIREMENT BENEFITS.
6.1 NORMAL RETIREMENT.
If a Participant retires at or after such Participant's Normal
Retirement Date in accordance with the provisions of the Retirement Plan, such
Participant shall be entitled to a Supplemental Retirement Benefit equal to (i)
the amount of such Participant's normal retirement benefit under the Retirement
Plan, based upon such Participant's election as to the form of benefit payment,
without regard to the Limitations, reduced by (ii) the amount of such
Participant's retirement benefit under the Retirement Plan, based upon such
Participant's election as to the form of benefit payment, after application of
the Limitations.
6.2 EARLY RETIREMENT.
If a Participant elects Termination of Employment Service in
order to take Early Retirement in accordance with the provisions of the
Retirement Plan, such Participant shall be entitled to a Supplemental
Retirement Benefit equal to (i) the amount of such Participant's early
retirement benefit under the Retirement Plan, based upon such Participant's
election as to the form of benefit payment, without regard to the Limitations,
reduced by (ii) the amount of such Participant's early retirement benefit under
the Retirement Plan, based upon such Participant's election as to the form of
benefit payment, after application of the Limitations.
6.3 VESTED BENEFIT.
If a Participant experiences a Termination of Employment Service
after reaching his Vesting Date under the Retirement Plan and is not entitled
to a Supplemental Retirement Benefit under Section 6.1 or Section 6.2, such
Participant shall be entitled to a Supplemental Retirement Benefit equal to (i)
the amount of such Participant's Vested Benefit computed under the Retirement
Plan, based on such Participant's election as to the form of benefit payment,
without regard to the Limitations, reduced by (ii) the amount of such
Participant's Vested Benefit computed under the Retirement Plan, based on such
Participant's election as to the form of benefit payment, after application of
the Limitations.
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6.4 DEATH.
(a) All provisions of the Retirement Plan pertaining to the
designation of beneficiaries, including revocation thereof and the effect of a
failure to designate a beneficiary, shall also apply with the same force and
effect to the Plan. Each action taken by a Participant with respect to the
designation or revocation of a beneficiary or beneficiaries under the
Retirement Plan shall automatically extend to the Plan.
(b) If a Participant's beneficiary becomes eligible at any time
to receive a survivor annuity or death benefit payable prior to the
commencement of such Participant's retirement benefit under the Retirement
Plan, the beneficiary shall be entitled to a Supplemental Retirement Benefit
equal to (i) the amount of the survivor annuity or death benefit which the
beneficiary is entitled to receive under the Retirement Plan, without regard to
the Limitations, reduced by (ii) the amount of the survivor annuity or death
benefit which the beneficiary is entitled to receive under the Retirement Plan,
after application of the Limitations.
6.5 BENEFIT PAYMENTS.
(a) Except as otherwise provided in paragraph (b), the payment of
a Supplemental Retirement Benefit to which a Participant or such Participant's
beneficiary is entitled under the Plan shall be made in the same manner and
subject to the same conditions as is the corresponding benefit under the
Retirement Plan.
(b) If a Participant or such Participant's beneficiary is
entitled to a Supplemental Retirement Benefit and if the present value of such
Supplemental Retirement Benefit is $10,000 or less (determined as of the date
payment of such Supplemental Retirement Benefit is to be made using the
interest and mortality assumptions that are used under the Retirement Plan to
satisfy Section 417(e) of the Code), the Company shall have the option to pay
such Supplemental Retirement Benefit in the form of a single lump-sum cash
payment.
6.6 TAXABILITY OF BENEFITS PRIOR TO PAYMENT.
If the Internal Revenue Service determines that a Participant or
beneficiary is subject to federal income tax on any portion of a Supplemental
Retirement Benefit before that benefit would otherwise become payable under the
Plan, the amount that is then currently subject to tax shall be paid to the
Participant or beneficiary in a single lump-sum cash payment as soon as
practicable after the Committee is notified of the Internal Revenue Service's
determination.
ARTICLE 7. RABBI TRUST
7.1 ESTABLISHMENT OF A RABBI TRUST. As soon as administratively
practicable following the Effective Date, the Company shall establish an
irrevocable Rabbi Trust to accumulate assets that will assist the Company in
meeting its obligations under the Plan. The Rabbi Trust shall have an
independent trustee that is selected by the Company. The trust agreement with
respect to the Rabbi Trust shall provide that the assets of the Rabbi Trust
shall at all times be specifically subject to the claims of the Company's
creditors in the event of the bankruptcy or insolvency (as defined by the Rabbi
Trust Agreement) of the Company.
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7.2 FUNDING OF THE RABBI TRUST. Except as otherwise provided in Article
8, the Company may contribute cash, Company Stock, or any other asset to the
Rabbi Trust when and as the Company deems appropriate.
ARTICLE 8. CHANGE IN CONTROL
8.1 FUNDING OF THE RABBI TRUST. Upon the occurrence of a Change in
Control, (i) the Company shall within ten business days thereafter contribute
to the Rabbi Trust in cash an amount sufficient to cover all Supplemental
Thrift Benefits and Supplemental Retirement Benefits accrued hereunder as of
date on which the Change in Control occurs and (ii) the Company, within 30 day
after the commencement of each Plan Year thereafter, shall contribute to the
Rabbi Trust in cash such additional amounts as shall be necessary to ensure
that the assets of the Rabbi Trust are at least sufficient to cover all
Supplemental Thrift Benefits and Supplemental Retirement Benefits accrued as of
the commencement of such Plan Year.
8.2 PAYMENT OF SUPPLEMENTAL THRIFT BENEFITS.
(a) If at any time after the occurrence of such Change in Control
any of the following events (each, an "Accelerating Event") occurs:
(i) a Participant's employment terminates for any reason; or
(ii) the Plan is terminated;
then the terminated Participant (in the case of clause (i)), or any Participant
(in the case of clause (ii), shall be entitled to receive a lump-sum cash
payment equal to: (A) such Participant's Supplemental Thrift Benefit and (B)
the present value (determined using the interest and mortality assumptions that
are used under the Retirement Plan to satisfy Section 417(e) of the Code) of
the Vested Benefit to which such Participant would be entitled pursuant to
Section 6.3 if the Accelerating Event constituted a Termination of Employment
Service by the Participant after reaching such Participant's Vesting Date under
the Retirement Plan.
(b) The Company shall make, or shall cause the Rabbi Trust to make,
the payments due under this Section 8.2 as soon as practicable, but not more
than 30 days following, the date on which a demand for payment is received from
the Participant.
8.3 COMPOSITION OF THE COMMITTEE. The composition of the Committee
immediately prior to the Change in Control shall not be changed after the
Change in Control, except with the consent of a majority of the Continuing
Directors. If, after the Change in Control, a member of the Committee resigns
or is unable to serve due to death or disability, the remaining members of the
Committee shall appoint a replacement.
8.4 REIMBURSEMENT OF FEES AND EXPENSES. Following a Change in Control,
the Company promptly shall reimburse a Participant for all legal fees and
expenses reasonably incurred in successfully enforcing any right or benefit
under the Plan.
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ARTICLE 9. BENEFICIARY DESIGNATION -- SUPPLEMENTAL THRIFT BENEFITS
9.1 DESIGNATION OF BENEFICIARY. Each Participant may designate a
beneficiary or beneficiaries who, upon the Participant's death, will receive
the Supplemental Thrift Benefits that otherwise would have been paid to the
Participant under the Plan. All such designations shall be signed by the
Participant, and shall be in such form as is prescribed by the Committee. Each
designation shall be effective as of the date delivered to the Committee (or to
a Company employee appointed by the Committee to receive such designations);
provided that the Committee must receive any beneficiary designation or change
therein before the Participant's death. A Participant may change his
beneficiary designation, at any time and from time to time, on such form as is
prescribed by the Committee. In the event of the death of the Participant, the
payment of all amounts deferred under the Plan, and the earnings thereon, shall
be in accordance with the last written beneficiary designation signed and
delivered by the Participant and not revoked.
9.2 PAYMENT TO BENEFICIARY. If a Participant dies before his Supplemental
Thrift Benefit has been paid in full, the payment thereof to the Participant's
beneficiary or beneficiaries shall be made in a single lump-sum cash payment as
soon as practicable following the Participant's death.
9.3 DEATH OF BENEFICIARY. In the event that all the beneficiaries of a
Participant predecease the Participant, the Supplemental Thrift Benefit that
would have been paid to the Participant under the Plan shall be paid in a
single lump-sum cash payment to the Participant's estate, or to the person or
persons designated in writing by the Participant's estate.
9.4 INEFFECTIVE DESIGNATION. In the event a Participant does not
designate a beneficiary with respect to his Supplemental Thrift Benefit, or for
any reason such designation is ineffective, in whole or in part, the
Supplemental Thrift Benefit that otherwise would have been paid to the
Participant under the Plan shall be paid in a single lump-sum cash payment to
the Participant's estate.
ARTICLE 10. WITHHOLDING OF TAXES
The Company shall have the right to either (i) require Participants to
remit to the Company, or any person or entity designated by the Committee to
administer the Plan, an amount sufficient to satisfy any applicable federal,
state, and local income and employment tax withholding requirements or (ii) to
deduct from any payment made pursuant to the Plan amounts sufficient to satisfy
such withholding requirements.
ARTICLE 11. AMENDMENT AND TERMINATION
The Company has the right to amend, suspend, or terminate the Plan at any
time by action of the Board of Directors, except that (i) no such amendment,
suspension, or termination shall, without the written consent of a Participant,
change the time or form of any payout under the Plan or otherwise adversely
affect, in any material respect, such Participant's rights with respect to
amounts theretofore accrued under the Plan, and (ii) following a Change in
Control, the Company shall not amend Section 5.5 (b), Articles 3, 7 or 8, or
this Article 11, and shall not amend any other provision of the Plan in a
manner that would alter the effect of Section 5.5(b), Articles 3, 7 or 8, or
this Article 11.
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ARTICLE 12. MISCELLANEOUS
12.1 EMPLOYMENT. No provision of the Plan, nor any action taken by the
Committee or the Company pursuant to the Plan, shall give or be construed as
giving a Participant any right to be retained in the employ of the Company, or
affect or limit in any way the right of the Company to terminate his
employment.
12.2 NOTICE. Any notice required or permitted to be given to the
Committee or the Company under the Plan shall be sufficient if in writing and
hand delivered, sent by registered or certified mail, or delivered in any other
manner authorized by the Committee, to the Committee (or to a person designated
by the Committee to receive such notices). Such notices, if mailed, shall be
addressed to the principal executive offices of the Company. Notice to any
Participant shall be given in any manner authorized by the Committee and, if
mailed, shall be sent to the Participant's address as is set forth in the
records of the Company.
12.3 UNFUNDED PLAN. This Plan is intended to be an unfunded plan for tax
purposes and for purposes of Title I of ERISA. The Plan is intended primarily
to provide deferred compensation benefits for "a select group of management or
highly compensated employees" within the meaning of Sections 201, 301, and 401
of ERISA, and therefore is further intended to be exempt from the provisions of
Parts 2, 3, and 4 of Title I of ERISA. The Committee may terminate the Plan for
any or all Participants, subject to Article 11, in order to achieve and
maintain these intended results.
12.4 SUCCESSORS. All obligations of the Company under the Plan shall be
binding on any successor to the Company, whether the existence of such
successor is the result of a direct or indirect merger or consolidation, the
purchase of all or substantially all of the assets of the Company, or
otherwise. The provision of the Plan with respect to each Participant shall be
binding on such Participant's heirs, executors, administrators or other
successors in interest.
12.5 NONTRANSFERABILITY. The Committee may recognize the right of an
alternate payee named in a domestic relations order to receive all or a portion
of a Participant's benefit under the Plan, provided that (i) the domestic
relations order would be a "qualified domestic relations order" within the
meaning of Section 414(p) of the Code if Section 414(p) were applicable to the
Plan, (ii) the domestic relations order does not purport to give the alternate
payee any right to assets of the Company or its affiliates, and (iii) the
domestic relations order does not purport to give the alternate payee any right
to receive payments under the Plan before the Participant is eligible to
receive such payments. Except as set forth in the preceding sentence with
respect to domestic relations orders, and except as required under applicable
federal, state, or local laws concerning the withholding of tax, the rights of
any Participant or beneficiary to amounts deferred under the Plan, and the
earnings thereon, are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Participant or any beneficiary, other than by will or by the
laws of descent and distribution. In no event shall the Company make any
payment under the Plan to any assignee or creditor of a Participant or
beneficiary.
12.6 SEVERABILITY. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
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12.7 COSTS OF THE PLAN. All costs of implementing and administering the
Plan shall be borne by the Company.
12.8 GOVERNING LAW. To the extent not preempted by federal law, the Plan
shall be governed by and construed in accordance with the laws of the state of
New Jersey, without giving effect to any choice or conflict of law provision or
rule.
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