1
Exhibit 10.55
EAGLE-PICHER INDUSTRIES, INC.
SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MARCH 27, 2001)
2
EAGLE-PICHER INDUSTRIES, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(AS AMENDED AND RESTATED EFFECTIVE MARCH 27, 2001)
SECTION 1. INTRODUCTION
1.1 HISTORY OF THE PLAN. Eagle-Picher Industries, Inc. (the "Company")
originally established the Eagle-Picher Industries, Inc. Supplemental Executive
Retirement Plan (the "Plan") effective November 4, 1987. The Plan was
subsequently amended in certain respects effective May 3, 1995, and is hereby
amended and restated in its entirety effective March 27, 2001.
1.2 PURPOSE OF THE PLAN. This Plan is intended to be an unfunded
deferred compensation plan to provide supplemental retirement benefits for a
select group of management or highly compensated employees, as described in
Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). As such, the Plan is exempt from the participation, vesting, funding
and fiduciary requirements of Title I of ERISA.
SECTION 2. DEFINITIONS
The following terms as used herein, unless a different meaning is
implied by the context, shall have the following meanings:
2.1 "ACCRUED BENEFIT" means the benefit to which a Member is
entitled under Section 4. 1 or Section 4.2, determined as if the
Member's participation under the Plan terminated as of the date
such benefit is being measured.
2.2 "AFFILIATE" means each wholly-owned subsidiary of the Company.
2.3 "BENEFICIARY" means the person or persons entitled to receive
any benefit under the Plan upon or after a Member's death. Each
Member may designate a Beneficiary by filing the proper form
with the Company. A Member may designate one or more contingent
Beneficiaries to receive any distributions after the death of a
prior Beneficiary. A designation shall be effective upon said
filing, provided that it is so filed during such Member's
lifetime, and may be changed
1
3
from time to time by the Member. In the absence of a valid
Beneficiary designation, or if, at the time any benefit payment
is due to a Beneficiary, there is no living Beneficiary validly
named by the Member, any such benefit payment shall be made to
the Member's estate.
2.4 "BENEFIT SERVICE" means the sum of a Member's years and
fractional years of:
(a) Benefit Service, as defined and determined under the
Company Pension Plan, subject to Section 3.2, determined
as of the date of his termination of employment or
retirement with the Company and its Affiliates; and
(b) Severance Benefit Service (if any).
2.5 "BOARD OF DIRECTORS" means the Board of Directors of
Eagle-Picher Industries, Inc.
2.6 "COMPANY" means Eagle-Picher Industries, Inc., or any successor
thereto.
2.7 "COMPANY PENSION PLAN" means the Eagle-Picher Salaried and
Closed Hourly Pension Plan, a defined benefit pension plan
maintained by the Company.
2.8 "FINAL AVERAGE MONTHLY SALARY" means (i) a Member's aggregate
Salary from those five consecutive calendar years (or portions
thereof), as taken from his compensation measuring period, which
results in the greatest sum, then (ii) divided by 60. For
purposes hereof, a Member's "compensation measuring period"
means the ten consecutive calendar years (or portions thereof)
ending with the calendar year which includes the later of (i)
the date of his termination of employment or retirement with the
Company and all Affiliates or (ii) the last day of the period
described in Section 2.15(c) (regarding severance pay).
2.9 "MEMBER" means an executive employee who participates in the
Plan in accordance with Section 3.1.
2.10 "NORMAL RETIREMENT AGE" means a Member's age when he has
attained age 62 and has completed 10 years of Vesting Service.
2
4
2.11 "NORMAL RETIREMENT DATE" means the first day of the calendar
month coincident with or next following the later of (i) the
Member's Normal Retirement Age or (ii) the date of his
termination of employment or retirement with the Company and all
Affiliates.
2.12 "OTHER PENSION" means the sum of the Member's following amounts:
(a) the gross monthly amount of his retirement benefit
accrued under the Company Pension Plan and any other
qualified defined benefit plan maintained by the Company
or an Affiliate;
(b) the monthly actuarial equivalent life annuity value of
his account under any defined contribution plan
maintained by the Company or an Affiliate (other than
the Eagle-Picher Salaried 401(k) Plan); and
(c) his Primary Social Security.
2.13 "PLAN" means the Eagle-Picher Industries, Inc. Supplemental
Executive Retirement Plan, as set forth in this instrument and
as may be amended thereafter.
2.14 "PRIMARY SOCIAL SECURITY" means the monthly benefit to which a
retired Member or a terminated Member is entitled or would be
entitled to receive upon attainment of age 62, or in the case of
a Member who terminates employment after attainment of age 62,
at the date his Benefit Service terminates, as a primary
insurance amount under the U.S. Social Security Act, as amended,
whether he applies for such benefit or not, and even though he
may lose part or all of such benefit for any reason. The amount
of such Primary Social Security to which the retired or
terminated Member is or would be entitled shall be estimated and
computed by the Company for the purposes of the Plan as of the
January 1 of the calendar year of retirement or termination on
the following basis:
(a) For a Member whose Benefit Service terminates on or
after his Normal Retirement Age, on the basis and at the
rate of the U.S. Social Security Act as amended and in
effect on the January 1 coincident with or next
3
5
preceding his Normal Retirement Date (regardless of any
retroactive changes made by legislation enacted after
said January 1).
(b) For a Member whose Benefit Service terminates prior to
his Normal Retirement Age, on the basis and at the rate
of the U.S. Social Security Act as amended and in effect
on the January 1 coincident with or next preceding the
date of his Benefit Service (regardless of any
retroactive changes made by legislation enacted after
said January 1), and, assuming that for each year until
he reaches age 62, he will continue to have annual
compensation in covered employment under said Act at
least equal to the maximum earnings which are considered
compensation subject to tax under said Act.
In the case of a Member whose projected Benefit Service at age
62 will be less than 25 years, the amount of the Member's
Primary Social Security will be prorated based on Benefit
Service projected to age 62 (maximum 25 years) divided by 25
years. In the case of a Member whose Benefit Service terminates
after age 62 and is less than 25 years, his Primary Social
Security will be prorated based on actual years of Benefit
Service (maximum 25 years) divided by 25 years.
2.15 "SALARY" means the sum of the Member's following amounts:
(a) total calendar year compensation (other than bonuses and
severance pay) before any deferral under the
Eagle-Picher Salaried 401(k) Plan or the Eagle-Picher
Flex Plan, including commissions and overtime pay, but
excluding fringe benefits (including but not limited to
automobile allowances, imputed income from group term
life insurance, relocation allowances, income from the
exercise of non-qualified stock options or disposition
of incentive stock option stock, interest
reimbursements, income from annuity purchases or tax
reimbursements under Section 4.6
4
6
of this Plan and income from any share appreciation or
incentive stock plans);
(b) bonuses, with bonuses accrued after 1984 being included
as Salary for the calendar year of accrual if actually
paid by January 15th of the following year and all other
bonuses being included in Salary for the calendar year
in which paid; and
(c) severance pay (lump sum and weekly), with such severance
pay paid after March 27, 2001 being included as Salary
ratably over the period which (i) begins on the date of
a Member's termination of employment or retirement from
the Company and all Affiliates and (ii) is equal to the
years and fractional years determined by taking his
aggregate severance pay (lump sum and weekly), divided
by his annual rate of pay as of the date of his
termination of employment or retirement from the Company
and all Affiliates.
2.16 "SEVERANCE BENEFIT SERVICE" means the period which (i) begins on
the date of a Member's termination of employment or retirement
from the Company and all Affiliates and (ii) is equal to the
years and fractional years determined by taking his aggregate
severance pay (lump sum and weekly) divided by his annual rate
of pay as of the date of his termination of employment or
retirement from the Company and all Affiliates.
2.17 "VESTING SERVICE" means the Member's years of Vesting Service,
as defined and determined under the Company Pension Plan,
subject to Section 3.2.
5
7
SECTION 3. MEMBERSHIP AND SERVICE
3.1 MEMBERSHIP. An executive employee will become a Member upon
designation by the Board of Directors. A Member's participation in the Plan may
be terminated by action of the Board of Directors.
3.2 SERVICE. For any purpose under this Plan, the Board of Directors, in
its discretion, may grant additional Vesting Service and Benefit Service to a
Member by written notice to the Member and the Company.
3.3 SUSPENSION OF MEMBERSHIP. In the event a Member ceases to be
eligible for the Plan, but remains in the employ of the Company or an Affiliate,
his Accrued Benefit shall be calculated as if he terminated employment or
retired with the Company and all Affiliates effective on the date of his
suspension of membership.
SECTION 4. BENEFITS
4.1 TERMINATION ON OR AFTER NORMAL RETIREMENT AGE (AGE 62). A Member who
terminates employment or retires with the Company and all Affiliates on or after
his Normal Retirement Age shall be entitled to a monthly benefit payable for his
lifetime, commencing as of his Normal Retirement Date, equal to:
(a) 2.4% of his Final Average Monthly Salary; times
(b) his Benefit Service (maximum 25 years); minus
(c) any Other Pension to which he is entitled, payable as of his
Normal Retirement Date; and minus
(d) the monthly cumulative amounts that would be payable as a single
life annuity commencing on his Normal Retirement Date under the
annuity contracts under Section 4.6.
6
8
4.2 TERMINATION BEFORE NORMAL RETIREMENT AGE (AGE 62). A Member who
terminates employment or retires with the Company and all Affiliates before his
Normal Retirement Age shall be entitled to a monthly benefit payable for his
lifetime, commencing as of his Normal Retirement Date, equal to:
(a) 2.4% of his Final Average Monthly Salary; times
(b) his Benefit Service projected to age 62 (maximum 25 years);
minus
(c) any Other Pension to which he would be entitled, payable as of
his Normal Retirement Date (projecting service to age 62, using
his current Final Average Monthly Salary and his Primary Social
Security payable at age 62); times
(d) a fraction, the numerator of which is his actual Benefit Service
(maximum 25 years) and the denominator of which is his Benefit
Service projected to age 62 (maximum 25 years); and minus
(e) the monthly cumulative amounts that would be payable as a single
life annuity commencing on his Normal Retirement Date provided
under the annuity contracts under Section 4.6.
provided, however, in no event shall the sum of the Member's Other Pension, the
benefit payable under this Section 4.2 and the monthly annuity amounts set forth
in Section 4.2(e) above, be less than 2.4% of the Member's Final Average Monthly
Salary times his actual Benefit Service (maximum 25 years).
4.3 TERMINATION PRIOR TO COMPLETION OF 10 YEARS OF VESTING SERVICE. A
Member who terminates employment with the Company or an Affiliate before
completing at least 10 years of Vesting Service shall not be entitled to any
benefits under this Plan.
4.4 NORMAL FORM OF BENEFITS, OPTIONAL FORMS. The normal form of payment
of a Member's Accrued Benefit under this Plan shall be a single life annuity
payable in equal monthly installments for the life of the Member, with each
installment equal to the monthly benefit to which he is entitled under the Plan,
commencing as of his Normal Retirement Date and
7
9
continuing until the payment of the installment due on the first day of the
month in which he dies. However, a Member may elect to receive his Accrued
Benefit in any optional annuity form of payment available under the Company
Pension Plan, provided that the amount thereof shall be actuarially adjusted
(using actuarial assumptions under the Company Pension Plan for the conversion
of optional annuity forms, as in effect on the commencement of his benefit under
this Plan). If a Member elects an optional annuity form which provides
guaranteed death benefits and the Member's designated beneficiary thereafter
dies after the Member but before the expiration of any guaranteed payments, the
Plan shall pay the remaining payments to the beneficiary of the designated
beneficiary (or, if none, the designated beneficiary's estate).
4.5 NO FUNDING OR INTEREST IN ASSETS. Subject to Section 4.6 below, the
Plan shall at all times be entirely unfunded and no provision shall at any time
be made with respect to segregating any assets of the Company for payment of any
benefits hereunder. No Member shall acquire any property interest in any assets
of the Company, their rights being limited to receiving from the Company
deferred payments as set forth in this Plan and these rights are conditioned
upon continued compliance with the terms and conditions of this Plan. To the
extent that any Member is entitled to any benefits under this Plan, such right
shall be no greater than the right of any unsecured general creditor of the
Company. Consistent with the foregoing, the Company may in its discretion
deposit funds in a grantor trust, or otherwise establish arrangements to pay
amounts that become due under the Plan, including but not limited to,
split-dollar life insurance and other insurance-related products, including
annuities set forth in Section 4.6 below.
4.6 TAXABLE ANNUITY PURCHASES AND TAX REIMBURSEMENT. The Company may
purchase single premium annuity contracts from time to time to provide for all
or a portion of a Member's vested Accrued Benefit under the Plan. Any such
contracts shall be distributed to and owned by the Member, and shall satisfy the
Company's obligations under the Plan with respect to such Accrued Benefit (or
portion thereof). The Company shall pay to the Member (or on behalf of the
Member) an amount reasonably calculated to approximate the income and excise tax
liability incurred by the Member attributable to the receipt of such annuity
contracts. Upon a
10
Member's termination of employment, the Company may distribute the cost of
purchasing an annuity to the Member rather than purchasing an annuity for the
portion of his benefit not otherwise provided for; provided however, that for
purposes of Sections 4.1(d) and 4.2(e), an annuity shall be deemed to have been
purchased for the Member upon such terms and conditions as determined by the
Company. The Company in its sole discretion shall determine the federal, state
and local tax rates to be used in calculating such reimbursement, which
determination shall be final.
4.7 DEATH BENEFITS. Upon the death of a Member after completion of at
least 10 years of Vesting Service but prior to his Normal Retirement Date, to
the extent that the Member's Accrued Benefit is not otherwise satisfied at death
through operation of any annuity contract referred to in Section 4.6 above, then
a death benefit shall be payable under the Plan to the Member's Beneficiary in
an amount equal to the lump sum actuarial equivalent present value of the
Member's remaining Accrued Benefit at the date of his death (using actuarial
assumptions under the Company Pension Plan for the calculation of single sum
payments, as in effect on the date of payment of the death benefit under this
Plan). Any such death benefit shall be paid to the Beneficiary in a single lump
sum as soon as administratively feasible after the Member's death.
SECTION 5. ADMINISTRATION
5.1 PLAN ADMINISTRATOR. The Board of Directors shall have the sole and
absolute discretionary authority to interpret and construe the Plan, including
making all determinations of eligibility and benefits under the Plan. All such
interpretations and determinations shall be binding and conclusive on all
interested parties. The Company shall be the Plan administrator and shall have
those powers and duties delegated to the Company by the Board of Directors,
including, without limitation, the following:
(a) assist the Board of Directors in calculating the amount of any
payment under the Plan;
(b) maintain and keep Plan records in such form and detail as the
Company may decide;
9
11
(c) employ consultants, accountants, actuaries and administrators as
the Company considers necessary;
(d) process the payment of benefits under the Plan;
(e) purchase annuities as provided for under Section 4.6; and
(f) perform such other acts as the Company deems necessary or
desirable to discharge its responsibilities under the Plan.
5.2 CLAIMS PROCEDURE. Any Member claiming a benefit under the Plan
shall present the claim in writing to the Board of Directors and the Board of
Directors shall respond in writing. If the claim is denied, the written notice
of denial shall state, in a manner calculated to be understood by the Member:
(a) the specific reason or reasons for denial, with specific
references to the Plan provisions on which the denial is based;
(b) a description of any additional material or information
necessary for the Member to perfect his claim and an explanation
of why such material or information is necessary; and
(c) an explanation of the Plan's claims review procedure.
The written notice denying or granting the Member's claim shall be
provided to the Member within 60 days after receipt by the Board of Directors of
the claim, unless special circumstances require an extension of time for
processing the claim. If such an extension is required, written notice of the
extension shall be furnished by the Board of Directors to the Member within the
initial 60-day period and in no event shall such an extension exceed a period of
60 days from the end of the initial 60-day period. Any extension notice shall
indicate the special circumstances requiring the extension and the date on which
the Board of Directors expects to render a decision on the claim. Any claim not
granted or denied within the period noted above shall be deemed to have been
denied.
Any Member whose claim is denied, or deemed to be denied under the
preceding sentence (or such Member's authorized representative) may, within 60
days after the Member's receipt of notice of the denial, or after the date of
the deemed denial, request a review of the
10
12
denial by notice given in writing to the Board of Directors. Upon such a request
for review, the claim shall be reviewed by the Board of Directors.
The decision on review normally shall be made within 60 days of receipt
by the Board of Directors of the request for review. If an extension of time is
required due to special circumstances, the Member shall be notified, in writing,
by the Board of Directors and the time limit for the decision on review shall be
extended to 120 days. The decision on review shall be in writing and shall
state, in a manner calculated to be understood by the Member, the specific
reasons for the decision and shall include references to the relevant Plan
provisions on which the decision is based. The written decision on review shall
be given to the claimant within the 60-day (or, if applicable, the 120-day) time
limit discussed above. If the decision on review is not communicated to the
Member within such period, the claim shall be deemed to have been denied upon
review. All decisions on review shall be final and binding with respect to all
concerned parties.
SECTION 6. AMENDMENT AND TERMINATION
6.1 AMENDMENT AND TERMINATION. The Board of Directors reserves the right
to make any modifications or amendments to the Plan or to terminate it at any
time for any reason.
6.2 EFFECT OF AMENDMENT OR TERMINATION. No amendment or termination of
the Plan shall directly or indirectly deprive any Member of all or any portion
of his Accrued Benefit as of the effective date of any such amendment or
termination.
SECTION 7. GENERAL PROVISIONS
7.1 ASSIGNMENT OR ALIENATION. Except as required by law, the right of a
Member to receive payments under this Plan shall not be subject to transfer,
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to execution, attachment, levy or similar process or
assignment by operation of law and any attempt, voluntary or involuntary, to
effect any such action shall be null and void and of no effect.
11
13
7.2 NO GUARANTEE OF EMPLOYMENT. The Plan shall not be deemed a contract
of employment between the Company and any Member, nor shall it impede the right
of the Company to discharge any Member at any time.
7.3 CONSTRUCTION. The Plan and all rights hereunder shall be governed by
and construed according to the laws of the State of Ohio, except as preempted by
federal law. Section headings are for convenience only and shall not be
considered as part of the terms and provisions of the Plan. Words in the
masculine shall include the feminine, and the singular shall include the plural,
and vice versa, unless qualified by the context. All Section references are to
the Plan, except where otherwise indicated.
7.4 CONSOLIDATION OR MERGER. In the event that the Company or any entity
(resulting from any merger or consolidation or which shall be a purchaser or
transferee so referred to) shall at any time be merged or consolidated into or
with any other entity or entities, or in the event that substantially all of the
assets of the Company or any such entity shall be sold or otherwise transferred
to another entity, the provisions of this Plan shall be binding upon and inure
to the benefit of the continuing entity or the entity resulting from such merger
or consolidation or the entity to which such assets shall be sold or
transferred. Except as provided in the preceding sentence, this Plan shall not
be assignable by the Company or by any entity referred to in the preceding
sentence.
IN WITNESS WHEREOF, Eagle-Picher Industries, Inc., by its duly
authorized officer, has caused this Plan to be executed as evidence of its
adoption effective as of March 27, 2001.
EAGLE-PICHER INDUSTRIES, INC.
By: ________________________________
Title: ________________________________
12