Exhibit (10)(e)
THE LUBRIZOL CORPORATION
EXCESS DEFINED CONTRIBUTION PLAN
(As Amended 9/23/02)
The Lubrizol Corporation hereby establishes, effective as of December
31, 1986, The Lubrizol Corporation Excess Defined Contribution Plan (the "Plan")
for the purpose of supplementing the benefits of certain employees, as permitted
by Section 3(36) of the Employee Retirement Income Security Act of 1974.
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. For the purposes hereof, the following words and
phrases shall have the meanings indicated, unless a different meaning is plainly
required by the context:
(a) BENEFICIARY. The term "Beneficiary" shall mean the person
or persons who shall be designated by a Participant to receive
distribution of such Participant's interest under the Plan in the event
such Participant dies before full distribution of his interest.
(b) CODE. The term "Code" shall mean the Internal Revenue Code
as amended from time to time. Reference to a section of the Code shall
include such section and any comparable section or sections of any
future legislation that amends, supplements, or supersedes such
section.
(c) COMPANY. Effective December 30, 1994, the term "Company"
shall mean The Lubrizol Corporation, an Ohio corporation, its corporate
successors and the surviving corporation resulting from any merger of
The Lubrizol Corporation with any other corporation or corporations,
and any subsidiaries of The Lubrizol Corporation which adopt the Plan.
(d) FUND. The term "Fund" shall mean each separate investment
fund established and maintained under the Trust Agreement.
(e) LUBRIZOL PROFIT-SHARING PLAN. The term "Lubrizol
Profit-Sharing Plan" shall mean The Lubrizol Corporation Employees'
Profit-Sharing Plan as the same shall be in effect on the date of a
Participant's retirement, death, or other termination of employment.
(f) PARTICIPANT. Effective September 30, 1994, The term
"Participant" shall mean any person employed by the Company who is
listed on Appendix A attached hereto, or who is designated by the Board
of Directors as an officer for the purposes of Section 16 of the
Securities Exchange Act of 1934, or whose benefits under the
Profit-Sharing Plan are limited by the application of Section
401(a)(17) of the Internal Revenue Code of 1986, as amended.
(g) PLAN. The term "Plan" shall mean the excess defined
contribution retirement plan as set forth herein, together with all
amendments hereto, which Plan shall be called "The Lubrizol Corporation
Excess Defined Contribution Plan."
(h) PLAN YEAR. The term "Plan Year" shall mean the calendar
year.
(i) SUPPLEMENTAL COMPANY CONTRIBUTIONS. The term "Supplemental
Company Contributions" shall mean the contributions made by the Company
under the Plan in accordance with the provisions of Section 2.2.
(j) TRUST AGREEMENT. The term "Trust Agreement" shall mean The
Lubrizol Corporation Excess Defined Contribution Plan Trust Agreement.
(k) TRUST ASSETS. The term "Trust Assets" shall mean all
property held by the Trustee pursuant to the Trust Agreement.
(l) TRUSTEE. The term "Trustee" shall mean the trustee of The
Lubrizol Corporation Excess Defined Contribution Trust.
(m) VALUATION DATE. The term "Valuation Date" shall mean the
last day of each Plan Year and any other date as may be agreed upon by
the Company and the Trustee.
(n) SEPARATE ACCOUNTS. The term "Separate Accounts" shall mean
each account established on behalf of a Participant under the Plan and
credited with Supplemental Company Contributions in accordance with the
provisions of Section 2.3.
(o) LUBRIZOL DEFERRED COMPENSATION PLAN. Effective July 1,
1994, the term "Lubrizol Deferred Compensation Plan" shall mean The
Lubrizol Corporation Deferred Compensation Plan for Officers (which was
adopted effective July 1, 1994), as shall be in effect on the date of
the Participant's retirement, death, or other termination of
employment.
(p) EXECUTIVE COUNCIL DEFERRED COMPENSATION PLAN. Effective
January 1, 1997, the term "Executive Council Deferred Compensation
Plan" shall mean The Lubrizol Corporation Executive Council Deferred
Compensation Plan, as shall be in effect on the date of the
Participant's retirement, death, or other termination of employment.
1.2 ADDITIONAL DEFINITIONS. All other words and phrases used herein
shall have the meanings given them in the Lubrizol Profit-Sharing Plan, unless a
different meaning is clearly required by the context.
ARTICLE II
SUPPLEMENTAL CONTRIBUTIONS
2.1 ELIGIBILITY. Effective January 1, 1997, a Participant whose
benefits under the Lubrizol Profit-Sharing Plan are limited with respect to any
Plan Year by Section 401(a)(17) or 415 of the Code, or who participated in the
Lubrizol Deferred Compensation Plan or the Executive Council Deferred
Compensation Plan, shall be eligible to have contributions made with respect to
him under the Plan in accordance with the provisions of this Article II.
2.2 SUPPLEMENTAL COMPANY CONTRIBUTIONS. Effective January 1, 1997, in
the event that Company contributions under the Lubrizol Profit-Sharing Plan with
respect to a Participant are limited for any Plan Year due to the provisions of
Section 401(a)(17) or 415 of the Code, or due to the Participant's participation
in the Lubrizol Deferred Compensation Plan or the
Executive Council Deferred Compensation Plan, the amounts by which such
contributions are limited shall be credited under the Plan by the Company and
shall be designated as Supplemental Company Contributions.
2.3 ALLOCATION OF CONTRIBUTIONS. Effective September 30, 1994,
Supplemental Company Contributions shall be allocated among the Separate
Accounts of the Participants on whose behalf such contributions are made.
2.4 ADMINISTRATION OF SEPARATE ACCOUNTS. Effective September 30, 1994,
each Separate Account to which contributions under Sections 2.2 and 2.3 are
credited and allocated shall be credited monthly with the net monthly increase
experienced by the General Fund of the Lubrizol Profit-Sharing Plan.
ARTICLE III
DISTRIBUTION
3.1 VESTING. Each Participant as of December 31, 1993, shall be 100
percent vested in the value of his Separate Accounts. Each new Participant after
December 31, 1993, shall be vested in the value of his Separate Accounts under
this Plan as determined in accordance with the vesting provisions of the
underlying qualified plans.
3.2 DISTRIBUTION. (Effective November 27, 1995)
(a) Each Participant who terminates employment with the
Company and its related corporations shall receive payment of the
balance in his Separate Account in the standard form of payment of a
single lump-sum payment payable within 30 days following employment
termination;
(b) Effective October 1, 2000, Participants may instead elect
within a 60-day period commencing 90 days prior to employment
termination to receive the balance of his Separate Account in any one
of the following payment options:
i. a single lump-sum payment payable within 30 days following
the calendar year in which the Participant's employment
terminated. Interest shall accrue and be paid with the
lump-sum; such interest to be computed at the applicable
interest rate, as defined in Section 417(e)(3)(A)(ii)(II) of
the Code, in effect on the date of employment termination.
ii. annual installments of up to ten payments, the first of
which shall be paid within 30 days of the Participant's
employment termination, and subsequent installments of which
shall be paid on the anniversary date of the payment of the
first installment. Such installments shall be determined by
dividing the value of the Participant's Separate Account
(determined in the same manner as under the Lubrizol
Profit-Sharing Plan by the number of installments to be paid
and adjusting for interest based on the applicable interest
rate, as defined in Section 417(e)(3)(A)(ii)(II) of the Code,
in effect on the date of employment termination. Installments
after the first installment shall include such interest, which
accrues during the 12-month period occurring since the date
the prior installment was paid.
Notwithstanding the foregoing provisions of the Plan to the contrary,
if the present value of the Separate Account is less than $25,000, such benefit
shall be paid in a single lump-sum payment to such person within 30 days
following employment termination.
3.3 DISTRIBUTION IN THE EVENT OF DEATH. Effective September 30, 1994,
in the event of the death of a Participant prior to distribution in full of his
interest under the Plan, his Beneficiary shall receive distribution of such
interest. In the event of death of a Participant prior to making an election for
benefits, such Beneficiary shall receive distribution of such interest as soon
as practicable after such Participant's death in the form elected by such
Beneficiary pursuant to Section 3.2. The Beneficiary under this Section 3.3
shall be the person designated as the Participant's beneficiary under the
Lubrizol Profit-Sharing Plan. If no Beneficiary survives such Participant or if
no Beneficiary has been designated by such Participant, the estate of such
Participant shall be the Beneficiary and receive distribution thereof. If any
Beneficiary dies after becoming entitled to receive distribution hereunder and
before such distribution is made in full, and if no other person or persons have
been designated to receive the balance of such distribution upon the happening
of such contingency, the estate of such deceased Beneficiary shall become the
Beneficiary as to such balance.
ARTICLE IV
ADMINISTRATION (Effective 9/23/02)
4.1 AUTHORITY OF THE COMPANY. The Company shall be responsible for the
general administration of the Plan, for carrying out the provisions hereof, and
for making, or causing the Trust to make, any required supplemental benefit
payments. The Company shall have all such powers as may be necessary to carry
out the provisions of the Plan, including the power to determine all questions
relating to eligibility for and the amount of any supplemental pension benefit
and all questions pertaining to claims for benefits and procedures for claim
review; to resolve all other questions arising under the Plan, including any
questions of construction; and to take such further action as the Company shall
deem advisable in the administration of the Plan. The Company may delegate any
of its powers, authorities, or responsibilities for the operation and
administration of the Plan to any person or committee so designated in writing
by it and may employ such attorneys, agents, and accountants as it may deem
necessary or advisable to assist it in carrying out its duties hereunder. The
actions taken and the decisions made by the Company hereunder shall be final and
binding upon all interested parties.
4.2 CLAIMS REVIEW PROCEDURE. The Company shall notify the person who
files a claim for benefits (hereinafter referred to as the "Claimant") of the
Plan's adverse benefit determination within a reasonable period of time, but not
later than 90 days after the receipt of the claim by the Plan, unless the
Company determines that special circumstances require an extension of time for
processing the claim. If the Company determines that special circumstances
require an extension of time for processing is required, written notice of the
extension shall be furnished to the Claimant prior to the termination of the
initial 90-day period. In no event shall such extension exceed a period of 90
days from the end of such initial period. The extension notice shall indicate
the special circumstances requiring an extension of time and the date by which
the Plan expects to render the benefit determination. Whenever the Company
decides for whatever reason to deny, whether in whole or in part, a claim for
benefits filed by any Claimant, the Company shall transmit to the Claimant a
written notice of the Company's decision, which shall be written in a manner
calculated to be understood by the Claimant and contain a statement of the
specific reasons for the denial of the claim, reference
to the specific Plan provisions on which the determination was based, a
description of any additional material or information necessary for the Claimant
to perfect the claim and an explanation of why such material or information is
necessary, a description of the Plan's review procedures and the time limits
applicable to such procedures, include a statement of the Claimant's right to
bring civil action under Section 502(a) ERISA following an adverse benefit
determination on review. Within 60 days of the date on which the Claimant
receives such notice, he or his authorized representative may request that the
claim denial be reviewed by filing with the Company a written request therefor,
which request shall contain the following information:
(a) the date on which the Claimant's request was filed with the
Company; provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Company shall control in the event that the date of the actual
filing is later than the date stated by the Claimant pursuant
to this paragraph (a);
(b) the specific portions of the denial of his claim which the
Claimant requests the Company to review;
(c) a statement by the Claimant setting forth the basis upon
which he believes the Company should reverse the Company's
previous denial of his claim for benefits and accept his claim
as made; and
(d) any written comments, documents, records and other
information which the Claimant desires the Company to examine
in its consideration of his position as stated pursuant to
paragraph (c).
Claimant shall be provided, upon request and free of charge, reasonable access
to, and copies of, all documents, records, and other information relevant to the
Claimant's claim for benefits. The review of the claim will take into account
all comments, documents, records and other information submitted by the Claimant
relating to the claim, without regard to whether such information was submitted
or considered in the initial benefit determination. Within no later than 60 days
of the date determined pursuant to paragraph (a) of this Section 4.2, the
Company shall notify Claimant of the Plan's benefit determination, unless the
Company determines that special circumstances require an extension of time for
processing the claim. If the Company determines that an extension of time for
processing is required, written notice of the extension will be furnished to the
Claimant prior to the termination of the initial 60-day period. In no event
shall such extension exceed a period of 60 days from the end of the initial
period. The extension notice shall indicate the special circumstances requiring
an extension of time and the date by which the Plan expects to render the
determination on review. The Company shall provide the Claimant with a written
notification of the Plan's benefit determination on review, written in a manner
calculated to be understood by the Claimant, including the reasons and Plan
provisions upon which its decision was based, a statement that the Claimant is
entitled to receive, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant to the
Claimant's claim for benefits, and a statement of the Claimant's right to bring
an action under Section 502(a) of ERISA.
ARTICLE V
AMENDMENT AND TERMINATION
The Company reserves the right to amend or terminate the Plan in whole
or in part at any time and to suspend operation of the Plan, in whole or in
part, at any time, by resolution or written action of its Board of Directors or
by action of a committee to which such authority has been delegated by the Board
of Directors; provided, however, that no amendment shall result in the
forfeiture or reduction of the interest of any Participant or person claiming
under or through any one or more of them pursuant to the Plan. Any amendment of
the Plan shall be in writing and signed by authorized individuals.
ARTICLE VI
MISCELLANEOUS
6.1 NON-ALIENATION OF RETIREMENT RIGHTS OR BENEFITS. No Participant
shall encumber or dispose of his right to receive any payments hereunder, which
payments or the right thereto are expressly declared to be non-assignable and
non-transferable. If a Participant or Beneficiary attempts to assign, transfer,
alienate or encumber his right to receive any payment under the Plan or permits
the same to be subject to alienation, garnishment, attachment, execution, or
levy of any kind, then thereafter during the life of such Participant or
Beneficiary and also during any period in which any Participant or Beneficiary
is incapable in the judgment of the Company of attending to his financial
affairs, any payments which the Company is required to make hereunder may be
made, in the discretion of the Company, directly to such Participant or
Beneficiary or to any other person for his use or benefit or that of his
dependents, if any, including any person furnishing goods or services to or for
his use or benefit or the use or benefit of his dependents, if any. Each such
payment may be made without the intervention of a guardian, the receipt of the
payee shall constitute a complete acquittance to the Company with respect
thereto, and the Company shall have no responsibility for the proper allocation
thereof.
6.2 PLAN NON-CONTRACTUAL. Nothing herein contained shall be construed
as a commitment or agreement on the part of any person employed by the Company
to continue his employment with the Company, and nothing herein contained shall
be construed as a commitment on the part of the Company to continue the
employment or the annual rate of compensation of any such person for any period,
and all Participants shall remain subject to discharge to the same extent as if
the Plan had never been established.
6.3 TRUST. In order to provide a source of payment for its obligations
under the Plan, the Company has established The Lubrizol Corporation Excess
Defined Contribution Plan Trust.
6.4 INTEREST OF A PARTICIPANT. Subject to the provisions of the Trust
Agreement, the obligation of the Company under the Plan to provide a Participant
or Beneficiary with supplemental retirement benefits merely constitutes the
unsecured promise of the Company to make payments as provided herein, and no
person shall have any interest in, or a lien or prior claim upon, any property
of the Company.
6.5 CONTROLLING STATUS. No Participant shall be eligible for a benefit
under the Plan unless such Participant is a Participant on the date of his
retirement, death, or other termination of employment.
6.6 CLAIMS OF OTHER PERSONS. The provisions of the Plan shall in no
event be construed as giving any person, firm or corporation any legal or
equitable right as against the Company,
its officers, employees, or directors, except any such rights as are
specifically provided for in the Plan or are hereafter created in accordance
with the terms and provisions of the Plan.
6.7 SEVERABILITY. The invalidity or unenforceability of any particular
provision of the Plan shall not affect any other provision hereof, and the Plan
shall be construed in all respects as if such invalid or unenforceable provision
were omitted herefrom.
6.8 GOVERNING LAW. The provisions of the Plan shall be governed and
construed in accordance with the laws of the State of Ohio.
APPENDIX A
TO
THE LUBRIZOL CORPORATION
EXCESS DEFINED CONTRIBUTION PLAN
Participants(1) Effective Date
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1. W. G. Bares December 31, 1986
2. G. R. Hill December 31, 1986
3. J. R. Ahern April 1, 1990
4. J. W. Bauer April 27, 1992
5. S. F. Kirk April 26, 1993
6. Y. Le Couedic April 26, 1993
7. J. E. Hodge April 26, 1993
8. M. W. Meister April 26, 1993
9. S. A. Di Biase April 26, 1993
10. G. P. Lieb April 25, 1994
11. L. M. Reynolds April 24, 1995
12. C. P. Cooley April 1, 1998
13. D. W. Bogus April 1, 2000
14. J. L. Hambrick May 1, 2000
15. G. R. Lewis April 23, 2001
16. R. S. Potter September 4, 2001
17. J. Wanstreet April 22, 2002
Former Participants(2)
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1. P. L. Krug (R)
2. W. T. Beargie (R)
3. W. D. Manning (R)
4. R. W. Scher (R)
5. J. P. Arzul (D)
6. J. R. Cooper (R)
7. J. I. Rue (R)
8. R. J. Senz (T)
9. E. V. Luoma (R)
10. R. Y. K. Hsu (R)
11. L. E. Coleman (D)
12. J. G. Bulger (R)
13. D. A. Muskat (R)
14. W. R. Jones (R)
15. R. A. Andreas (R)
16. J. A. Thomas (R)
17. K. H. Hopping (R)
18. R. D. Robins (R)
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(1) This listing of Participants is limited to those Participants who are also
officers for purposes of Section 16 of the Securities Exchange Act of 1934.
(2) R = Retired, D = Deceased, T = Terminated.