EXHIBIT 10.5 (ii)
DIEBOLD, INCORPORATED
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN II
AS AMENDED AND RESTATED JULY 1, 2002
36
DIEBOLD, INCORPORATED
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN II
(AS AMENDED AND RESTATED JULY 1, 2002)
TABLE OF CONTENTS
PAGE
ARTICLE I PLAN....................................................................................................1
ARTICLE II PURPOSE OF THE PLAN....................................................................................1
ARTICLE III DEFINITIONS...........................................................................................1
(1) "Actuarial Equivalent"..............................................................................1
(2) "Annual Compensation"...............................................................................1
(3) "Beneficiary".......................................................................................1
(4) "Board".............................................................................................1
(5) "Change in Control".................................................................................1
(6) "Change in Control Benefit".........................................................................1
(7) "Committee".........................................................................................1
(8) "Company"...........................................................................................2
(9) "Company Service"...................................................................................2
(10) "Disability Benefit"................................................................................2
(11) "Early Retirement Age"..............................................................................2
(12) "Early Retirement Date".............................................................................2
(13) "Early Retirement Benefit"..........................................................................2
(14) "Employer"..........................................................................................2
(15) "15-Year Service Benefit"...........................................................................2
(16) "Final Average Monthly Compensation"................................................................2
(17) "Involuntary Termination Benefit"...................................................................2
(18) "Normal Retirement Benefit".........................................................................2
(19) "Normal Retirement Date"............................................................................2
(20) "Participant".......................................................................................2
(21) "Plan"..............................................................................................2
(22) "Post-Retirement Death Benefit".....................................................................2
(23) "Pre-Retirement Death Benefit"......................................................................2
(24) "50% Joint and Survivor Annuity"....................................................................2
(25) "Qualified Retirement Plan".........................................................................3
(26) "Service Fraction"..................................................................................3
(27) "Social Security Benefit"...........................................................................3
(28) "Spouse"............................................................................................3
(29) "Supplemental Retirement Benefit"...................................................................3
(30) "10-Year Service Benefit"...........................................................................3
(31) "Terminated For Cause"..............................................................................3
(32) "Total Disability"..................................................................................3
ARTICLE IV ELIGIBILITY, PARTICIPATION AND VESTING................................................................3
(a) Eligibility for Plan; Disqualification..............................................................3
(b) Terminated for Cause................................................................................4
(c) Eligibility for Benefits............................................................................5
(d) Vesting.............................................................................................5
ARTICLE V NORMAL RETIREMENT BENEFITS..............................................................................5
(a) Qualification for Benefit...........................................................................5
(b) Computation of Amount of Normal Retirement Benefit..................................................5
(c) Form and Duration of Payment........................................................................5
ARTICLE VI EARLY RETIREMENT BENEFIT...............................................................................6
(a) Qualification for Benefit...........................................................................6
(b) Computation of Amount of Early Retirement Benefit...................................................6
(c) Form and Duration of Payment........................................................................6
ARTICLE VII INVOLUNTARY TERMINATION BENEFIT.......................................................................7
(a) Qualification for Benefit...........................................................................7
(b) Computation of Amount of Involuntary Termination Benefit............................................7
(c) Form and Duration of Payment........................................................................7
ARTICLE VIII 10-YEAR SERVICE BENEFIT..............................................................................8
(a) Qualification for Benefit...........................................................................8
(b) Computation of Amount of 15-Year Service Benefit....................................................8
(c) Form and Duration of Payment........................................................................8
ARTICLE IX 15-YEAR SERVICE BENEFIT................................................................................8
(a) Qualification for Benefit...........................................................................8
(b) Computation of Amount of 15-Year Service Benefit....................................................9
(c) Form and Duration of Payment........................................................................9
ARTICLE X DISABILITY BENEFIT......................................................................................9
(a) Qualified for Benefit...............................................................................9
(b) Computation of Amount of Disability Benefit.........................................................9
(c) Form and Duration of Payment.......................................................................10
ARTICLE XI BENEFIT UPON CHANGE IN CONTROL........................................................................10
(a) Qualification for Benefit..........................................................................10
(b) Change in Control..................................................................................10
(c) Computation of Amount of Change in Control Benefit.................................................12
(d) Form and Duration of Payment.......................................................................13
ARTICLE XII DEATH BENEFIT........................................................................................13
(a) Pre-Retirement.....................................................................................13
(b) Post-Retirement Death Benefit......................................................................14
(c) Minimum Death Benefit..............................................................................14
ARTICLE XIII PLAN ADMINISTRATION.................................................................................15
ARTICLE XIV OPTIONAL FORMS OF PAYMENT............................................................................16
(a) Annuity Options....................................................................................16
(b) Timing and Manner of Election......................................................................16
(c) Lump Sum Payments..................................................................................16
ARTICLE XV MISCELLANEOUS.........................................................................................17
(a) Funding............................................................................................17
(b) No Guaranty of Benefits............................................................................17
(c) Assignments and Restrictions.......................................................................17
(d) Headings...........................................................................................18
(e) Employment.........................................................................................18
(f) Applicable Law.....................................................................................18
(g) Binding Effect on Employer, Participants, Spouses and Their Successors.............................18
(h) Amendment and Discontinuance.......................................................................18
(i) Participant Information............................................................................18
DIEBOLD, INCORPORATED
SUPPLEMENTAL EMPLOYEE RETIREMENT PLAN II
ARTICLE I
PLAN
The Diebold, Incorporated Supplemental Employee Retirement Plan II (the "Plan")
originally adopted effective as of January 1, 2001 is hereby amended and
restated, effective as of July 1, 2002. This Amended and Restated Plan applies
to any Participant who retires, is disabled or is deceased on or after July 1,
2002. Any Participant who reaches any one of those events prior to July 1, 2002
would be governed by the terms of the plan then in effect.
ARTICLE II
PURPOSE OF THE PLAN
This Plan was created for the principal purpose of providing retirement income
for certain executive and highly compensated management employees of Diebold,
Incorporated and its subsidiary organizations. It is intended to supplement
benefits payable under the Diebold, Incorporated Retirement Plan for Salaried
Employees, as well as benefits payable under the Federal Social Security Act and
certain other deferred compensation arrangements.
ARTICLE III
DEFINITIONS
(a) The following definitions shall apply with respect to this Plan:
(1) "Actuarial Equivalent" shall mean, except where otherwise
indicated, a benefit of equivalent value to the benefit it
replaces calculated on the basis of the UP-1984 Mortality
Table and a six and one-half percent (6-1/2%) interest rate
per annum, compounded annually.
(2) "Annual Compensation" shall mean a Participant's base pay from
an Employer for any Plan Year plus the Participant's Annual
Incentive Plan in the Plan Year in which it is accrued. Annual
Compensation shall also include amounts paid to individuals
who are citizens or residents of the United States and who are
employees of, or provide services to, a foreign affiliate of
the Company to which an agreement entered into by the Company
under Code Section 3121(l) applies.
(3) "Beneficiary" shall mean a person or entity selected by the
Participant or an eligible surviving Spouse that may receive
death benefits under this Plan, as are outlined in Article
XII. A Beneficiary so designated will not generally be a
Spouse.
(4) "Board" shall mean the Board of Directors of Diebold,
Incorporated.
(5) "Change in Control" shall have the meaning assigned to such
term in Article XI.
(6) "Change in Control Benefit" shall mean the benefit determined
in accordance with Article XI.
(7) "Committee" shall mean the Compensation Committee of the
Board, as such Committee may be constituted from time to time.
(8) "Company" shall mean Diebold, Incorporated.
(9) "Company Service" shall mean years of employment (measured in
years and completed months) with an Employer.
(10) "Disability Benefit" shall mean the benefit determined in
accordance with Article X hereof.
(11) "Early Retirement Age" shall mean the 60th birthday of a
Participant.
(12) "Early Retirement Date" shall mean the first day of the month
coinciding with or next following the 60th birthday of a
Participant.
(13) "Early Retirement Benefit" shall mean the benefit determined
in accordance with Article VI hereof.
(14) "Employer" shall mean (a) the Company or its successors, and
(b) any affiliated corporation or other entity which may
specifically adopt this Plan with the consent of the Company,
or its successors.
(15) "15-Year Service Benefit" shall mean the benefit determined in
accordance with Article IX hereof.
(16) "Final Average Monthly Compensation" shall mean one-twelfth of
the average of the Participant's Annual Compensation for the
five complete consecutive calendar years during his last 10
calendar years of employment with the Employer during which
his compensation was the highest. In the event a Participant
has been employed for a period of less than five consecutive
calendar years, the Participant's Final Average Monthly
Compensation shall be the average of his monthly compensation
amounts in effect for all of the complete calendar months
during which he was employed by the Employer.
(17) "Involuntary Termination Benefit" shall mean the benefit
determined in accordance with Article VII.
(18) "Normal Retirement Benefit" shall mean the benefit determined
in accordance with Article V.
(19) "Normal Retirement Date" shall mean the first day of the month
coinciding with or next following the 65th birthday of a
Participant.
(20) "Participant" shall mean any executive highly paid or
management employee of an Employer who is selected to
participate in this Plan pursuant to the provisions of Article
IV.
(21) "Plan" shall mean this Diebold, Incorporated Supplemental
Employee Retirement Plan, as in effect from time to time.
(22) "Post-Retirement Death Benefit" shall mean the benefit
determined in accordance with Section (b) of Article XII.
(23) "Pre-Retirement Death Benefit" shall mean the benefit
determined in accordance with Section (a) of Article XII.
(24) "50% Joint and Survivor Annuity" shall mean a reduced monthly
Supplemental Retirement Benefit which is Actuarially
Equivalent to the single life annuity under the Plan and is
payable to the Participant for his life, with continuance of
monthly payments of 50% of such reduced amount after his death
to his surviving Spouse until the first day of the month in
which occurs the surviving Spouse's death.
(25) "Qualified Retirement Plan" shall mean the Diebold,
Incorporated Retirement Plan for Salaried Employees, as
presently set forth and as it may subsequently be amended, or
its successor.
(26) "Service Fraction" shall mean, for any Participant, a
fraction, the numerator of which is the lesser of (A) the
Participant's years of Company Service, or (B) 30, and the
denominator of which is 30.
(27) "Social Security Benefit" shall mean the Primary Insurance
Amount under the Federal Social Security Act to which a
Participant would be entitled as of the later of his Normal
Retirement Date or the date of his actual retirement, computed
on the basis of the Participant's average wage history
(estimated or actual) for years before the date of
determination and, in the case of a Participant who terminates
employment with the Employer prior to his Normal Retirement
Date, by assuming that the Participant will earn wages after
his termination of employment and prior to his Normal
Retirement Date at a rate equal to the Participant's wage rate
at the time of his termination of employment. If a Participant
in this Plan is not eligible for full Social Security Benefits
(for example, an individual who has previously worked in the
military), for purposes of determining benefits under this
Plan, such Social Security Benefits would be imputed as if he
had been so eligible and had been covered by Social Security
for his entire working career.
(28) "Spouse" shall mean the surviving spouse of a Participant at
the time of his death, but only if the Participant and such
spouse were married at least one year prior to the earlier of
the Participant's death, retirement or other termination of
employment with the Employer.
(29) "Supplemental Retirement Benefit" shall mean the Change in
Control Benefit, Disability Benefit, Early Retirement Benefit,
10-Year Service Benefit, 15-Year Service Benefit, Involuntary
Termination Benefit, Normal Retirement Benefit, Pre-Retirement
Death Benefit or Post-Retirement Death Benefit for which a
Participant or his Spouse may qualify.
(30) "10-Year Service Benefit" shall mean the benefit determined in
accordance with Article VIII hereof.
(31) "Terminated For Cause" shall have the meaning assigned to such
term in Article IV.
(32) "Total Disability" shall mean a condition in which a
Participant is unable, by reason of sickness or accident, to
fulfill the duties of his employment by the Employer. The
determination of Total Disability shall be made by the
Committee in accordance with the provisions of Article X.
(b) Throughout this Plan, and whenever appropriate, the masculine gender
shall be deemed to include the feminine and neuter, the singular shall
be deemed to include the plural and vice versa.
ARTICLE IV
ELIGIBILITY, PARTICIPATION AND VESTING
(a) ELIGIBILITY FOR PLAN; DISQUALIFICATION. The Committee, acting in its
sole discretion, shall make recommendations to the Board as to which
executive or highly paid management
employees of the Employer shall become Participants in the Plan. The
Board shall make the final decision as to those executive or highly
paid management employees who shall become Participants in the Plan and
at which time such employees become Participants; provided, however,
that in the absence of a Change in Control or a finding of Total
Disability, a Participant's participation shall cease and no benefits
under this Plan shall be payable:
(i) to a Participant if the Participant:
(A) voluntarily terminates employment before attaining age 60
with less than 10 years of Company Service; or
(B) fails to give an Employer six months written advance notice
of his pending termination of employment if he is leaving
Diebold prior to age 60 (or three months written advance
notice if he is leaving Diebold at age 60 or later); or
(C) is Terminated for Cause; or
(ii) to a Participant's Spouse, if the Participant:
(A) dies prior to satisfying the requirements for a Spouse's
Pre-Retirement or Post-Retirement Death Benefit under
Article XII; or
(B) is Terminated for Cause; or
(iii) to a Participant's Beneficiary or Estate, if the Participant:
(A) dies prior to satisfying the requirements for a
Pre-Retirement or Post-Retirement Spouse's Death Benefit
under Article XII; or
(B) is Terminated for Cause.
(b) TERMINATED FOR CAUSE. As used in this Plan, "Terminated for Cause"
shall mean termination of a Participant's employment by an Employer due
to the Participant's:
(i) intentional act of fraud, embezzlement or theft in connection
with his duties or in the course of his employment with the
Employer;
(ii) intentional wrongful damage to property of the Employer;
(iii) intentional wrongful disclosure of secret processes or
confidential information of the Employer; or
(iv) intentional wrongful engagement in any competitive activity
which would constitute a material breach of the duty of
loyalty to the Employer; and any such act shall have been
materially harmful to the Employer.
For purposes of the Plan, no act, or failure to act, on the part of the
Participant shall be deemed "intentional" if it was due primarily to an
error in judgement or negligence, but shall be deemed "intentional"
only if done, or omitted to be done, by the Participant not in good
faith and without reasonable belief that his action or omission was not
in or opposed to the best interest of the Employer. Notwithstanding the
foregoing, a Participant shall not be deemed to have been Terminated
for Cause hereunder unless and until there shall have been delivered to
the Participant a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters of the Board then in office at a
meeting of the Board called and held for such purpose, finding that, in
the good faith opinion of the Board, the Participant had committed an
act set forth above and specifying the particulars thereof in detail.
The Participant shall receive reasonable notice and an opportunity for
the Participant, together with his counsel, to be heard before the
Board.
Nothing herein shall limit the right of the Participant or his
Beneficiaries to contest the validity or propriety of any such
determination.
(c) ELIGIBILITY FOR BENEFITS. A Participant shall be entitled to receive a
Supplemental Retirement Benefit (or have a Supplemental Retirement
Benefit provided for his surviving Spouse or Beneficiary) only if he
satisfies the foregoing conditions of this Article IV and satisfies the
requirements of one of the succeeding Articles of the Plan.
(d) VESTING. A Participant shall be vested hereunder upon attaining 10
years of Company Service or upon meeting the requirements for a Normal
Retirement Benefit, Early Retirement Benefit, Disability Benefit,
Involuntary Termination Benefit or Change in Control Benefit hereunder.
ARTICLE V
NORMAL RETIREMENT BENEFITS
(a) QUALIFICATION FOR BENEFIT. Subject to the provisions of Article IV, a
Participant who attains age 65 while employed by an Employer shall be
eligible, at any time after his said attainment of age 65, to retire
and receive a Normal Retirement Benefit commencing at the time set
forth in Section (b) of this Article.
(b) COMPUTATION OF AMOUNT OF NORMAL RETIREMENT BENEFIT. A Participant who
retires on or after his Normal Retirement Date shall be entitled to
receive, commencing on the first day of the month coincident with or
following the later of his retirement or his application therefor, a
monthly Supplemental Retirement Benefit equal to 50% of the
Participant's Final Average Monthly Compensation multiplied by his
Service Fraction, reduced by the sum of:
(i) 50% of the monthly Social Security Benefit payable to the
Participant commencing on the first day of the month
coincident with or following his retirement or his application
for benefits, if later; and
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
commencing on the first day of the month coincident with or
following his retirement or his application for benefits, if
later, assuming (i) for purposes of determining whether the
Participant had a vested benefit under the Qualified
Retirement Plan and when the Participant could elect
commencement of his benefit under the Qualified Retirement
Plan (but not for purposes of determining the amount thereof),
that the Participant had sufficient service under the
Qualified Retirement Plan to have a vested benefit under the
Qualified Retirement Plan and a right to commence receiving
such benefit on the first day of the month following his
retirement or his application for benefits hereunder, if
later, and (ii) that the Participant elected commencement of
such benefit on such date.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan
(single life annuity for an unmarried Participant or 50% Joint and
Survivor Annuity for a married Participant), except as may be provided
in Article XIV, as applicable.
ARTICLE VI
EARLY RETIREMENT BENEFIT
(a) QUALIFICATION FOR BENEFIT. Subject to the provisions of Article IV, a
Participant who attains his Early Retirement Age while employed by an
Employer shall be eligible, from the time he has reached his Early
Retirement Age up to the time he reaches age 65, to retire and receive
an Early Retirement Benefit commencing at the time set forth in Section
(b) of this Article.
(b) COMPUTATION OF AMOUNT OF EARLY RETIREMENT BENEFIT. A Participant who
retires on or after his Early Retirement Date and before his Normal
Retirement Date shall be entitled to receive, commencing on the later
of his Normal Retirement Date or the first day of the month after his
application therefor, a monthly Early Retirement Benefit equal to 50%
of the Participant's Final Average Monthly Compensation multiplied by
his Service Fraction reduced by the sum of:
(i) 50% of the monthly Social Security Benefit payable to the
Participant commencing on this Normal Retirement Date; and
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
commencing on his Normal Retirement Date (as defined herein),
assuming (i) for purposes of determining whether the
Participant had a vested benefit under the Qualified
Retirement Plan and when the Participant could elect
commencement of his benefit under the Qualified Retirement
Plan (but not for purposes of determining the amount thereof),
that the Participant had sufficient service under the
Qualified Retirement Plan to have a vested benefit under the
Qualified Retirement Plan and a right to commence receiving
such benefit at his Normal Retirement Date, and (ii) that the
Participant elected commencement of such benefit at his Normal
Retirement Date.
The Participant, at his election, may commence his benefits under this
Article on the first day of any month after his date of retirement and
before his Normal Retirement Date, but in that case his monthly benefit
computed under the preceding sentence shall be actuarially reduced
using the assumptions identified in Article III(a)(1) for each full
month by which the date of commencement precedes the Participant's
Normal Retirement Date.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan (single life annuity for an unmarried
Participant or 50% Joint and Survivor Annuity for a married
Participant), except as may be provided in Article XIV, as applicable.
ARTICLE VII
INVOLUNTARY TERMINATION BENEFIT
(a) QUALIFICATION FOR BENEFIT. Subject to the provisions of Article IV, a
Participant whose employment with the Employer is involuntarily
terminated before he reaches his Early Retirement Age shall be eligible
to receive an Involuntary Termination Benefit commencing at the time
set forth in Section (b) of this Article. The Committee, or its duly
appointed representative for this purpose, shall have full discretion
to determine whether the termination of a Participant's employment with
the Employer is involuntary.
(b) COMPUTATION OF AMOUNT OF INVOLUNTARY TERMINATION BENEFIT. A Participant
who is eligible for an Involuntary Termination Benefit shall be
entitled to receive, commencing on the later of his Normal Retirement
Date or the first day of the month after his application therefor, a
monthly Supplemental Retirement Benefit equal to 50% of the
Participant's Final Average Monthly Compensation multiplied by his
Service Fraction, reduced by the sum of:
(i) 50% of the monthly Social Security Benefit payable to the
Participant commencing on his Normal Retirement Date; and
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
commencing on his Normal Retirement Date (as herein defined),
assuming (i) for purposes of determining whether the
Participant had a vested benefit under the Qualified
Retirement Plan and when the Participant could elect
commencement of his benefit under the Qualified Retirement
Plan (but not for purposes of determining the amount thereof),
that the Participant had sufficient service under the
Qualified Retirement Plan to have a vested benefit under the
Qualified Retirement Plan and a right to commence receiving
such benefit at his Normal Retirement Date, and (ii) that the
Participant elected commencement of such benefit at his Normal
Retirement Date.
The Participant, at his election, may commence his benefits under this
Article on the first day of any month after his date of retirement and
before his Normal Retirement Date, but in that case his monthly benefit
computed under the preceding sentence shall be actuarially reduced
using the assumptions identified in Article III(a)(1) for each full
month by which the date of commencement precedes the Participant's
Normal Retirement Date.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan (single life annuity for an unmarried
Participant or 50% Joint and Survivor Annuity for a married
Participant), except as may be provided in Article XIV, as applicable.
ARTICLE VIII
10-YEAR SERVICE BENEFIT
(a) QUALIFICATION FOR BENEFIT. Subject to the provisions of Article IV, a
Participant who terminates employment with the Employer with 10 or more
years of Company Service but who is not then eligible for other
benefits under this Plan shall be eligible to receive a 10-Year Service
Benefit commencing at the time set forth in Section (b) of this
Article.
(b) COMPUTATION OF AMOUNT OF 10-YEAR SERVICE BENEFIT. A Participant who is
eligible for a 10-Year Service Benefit shall be entitled to receive,
commencing on the later of his Normal Retirement Date or the first day
of the month after his application therefore, a monthly Supplemental
Retirement Benefit equal to the excess, if any, of:
(i) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
at his Normal Retirement Date but calculated without regard to
any statutory limits under Code Sections 401(a)(7) or 415(b),
minus
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
at his Normal Retirement Date (as defined herein), assuming
(i) for purposes of determining when the Participant could
elect commencement of his benefit under the Qualified
Retirement Plan (but not for purposes of determining the
amount thereof) that the Participant had sufficient service
under the Qualified Retirement Plan to have a right to
commence his benefit under the Qualified Retirement Plan at
his Normal Retirement Date, and (ii) that the Participant
elected commencement of such benefit at his Normal Retirement
Date;
The Participant, at his election, may commence his benefits under this
Article on the first day of any month after his date of retirement and
before his Normal Retirement Date, but in that case his monthly benefit
computed under the preceding sentence shall be actuarially reduced
using the assumptions identified in Article III(a)(1) for each full
month by which the date of commencement precedes the Participant's
Normal Retirement Date.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan (single life annuity for an unmarried
Participant or 50% Joint and Survivor Annuity for a married
Participant), except as may be provided in Article XIV, as applicable.
ARTICLE IX
15-YEAR SERVICE BENEFIT
(a) QUALIFICATION FOR BENEFIT. Subject to the provisions of Article IV, a
Participant who terminates employment with the Employer with 15 or more
years of Company Service but who is not then eligible for other
benefits under this Plan (other than the 10-year Service Benefit) shall
be eligible to receive a 15-Year Service Benefit commencing at the time
set forth in Section (b) of this Article.
(b) COMPUTATION OF AMOUNT OF 15-YEAR SERVICE BENEFIT. A Participant who is
eligible for a 15-Year Service Benefit shall be entitled to receive,
commencing on the later of his Normal Retirement Date or the first day
of the month after his application therefor, a monthly Supplemental
Retirement Benefit equal to the excess, if any, of:
(i) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
at his Normal Retirement Date but calculated without regard to
any statutory limits under Code Sections 401(a)(7) or 415(b),
minus
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
at his Normal Retirement Date (as defined herein), assuming
(i) for purposes of determining when the Participant could
elect commencement of his benefit under the Qualified
Retirement Plan (but not for purposes of determining the
amount thereof) that the Participant had sufficient service
under the Qualified Retirement Plan to have a right to
commence his benefit under the Qualified Retirement Plan at
his Normal Retirement Date, and (ii) that the Participant
elected commencement of such benefit at his Normal Retirement
Date.
The Participant, at his election, may commence his benefits under this
Article on the first day of any month after his date of retirement and
before his Normal Retirement Date, but in that case his monthly benefit
computed under the preceding sentence shall be actuarially reduced
using the assumptions identified in Article III(a)(1) for each full
month by which the date of commencement precedes the Participant's
Normal Retirement Date.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan (single life annuity for an unmarried
Participant or 50% Joint and Survivor Annuity for a married
Participant), except as may be provided in Article XIV, as applicable.
ARTICLE X
DISABILITY BENEFIT
(a) QUALIFIED FOR BENEFIT. Subject to the provisions of Article IV, if a
Participant's employment with the Employer is terminated before he
reaches his Early Retirement Age by reason of his Total Disability (to
be determined solely in the discretion of the Committee based upon
satisfactory medical evidence submitted to the Committee, including
recognition of the Participant's receipt of disability benefits under
the Social Security Act), such Participant shall be eligible to receive
a Disability Benefit commencing at the time set forth in Section (b) of
this Article.
(b) COMPUTATION OF AMOUNT OF DISABILITY BENEFIT. A Participant who is
eligible for a Disability Benefit shall be entitled to receive,
commencing on the first day of the month following the later of the
date of the Participant's termination of employment on account of total
Disability or his application therefor, a monthly Supplemental
Retirement Benefit
equal to (1) 50% of the Participant's Final Average Monthly
Compensation multiplied by his Service Fraction, reduced by (2) the sum
of:
(i) 50% of the monthly Social Security Benefit that would be
payable to the Participant on account of his Total Disability
if he were determined to be entitled to receive a Social
Security Benefit as a result of his Total Disability (whether
or not the Participant in fact qualifies for such Social
Security Benefit); and
(ii) the monthly benefit (expressed as a single life annuity, but
not including any temporary supplements) that would be payable
to the Participant under the terms of the Qualified Retirement
Plan on account of his Total Disability if he were determined
to be entitled to receive a monthly disability benefit under
the Qualified Retirement Plan as a result of his Total
Disability (whether or not the Participant in fact qualifies
for such monthly disability benefit), assuming, for purposes
of determining the Participant's eligibility for a disability
pension under the Qualified Retirement Plan (but not for
purposes of determining the amount thereof), that the
Participant had sufficient service under the Qualified
Retirement Plan to be eligible for a disability pension
thereunder;
the difference of (i) minus (ii) then being multiplied by
83.4%.
(c) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Plan (single life annuity for an unmarried Participant or
50% Joint and Survivor Annuity for a married Participant) paid monthly
until the earlier of the first day of the month for which the committee
determines that the Participant no longer has a Total Disability, or
the first day of the month in which occurs the Participant's death
(except as may be provided in Article XIV, as applicable). The
Committee may, in its discretion, take such steps as it deems necessary
to determine the continued existence of a Participant's Total
Disability and may cease or reduce the Disability Benefit payable
hereunder if it is established to the Committee's satisfaction (as
determined under the same standards recognized at the time the
Committee initially deemed the Participant as suffering a Total
Disability) that such Total Disability no longer exists or Social
Security Disability Benefits are no longer being paid.
ARTICLE XI
BENEFIT UPON CHANGE IN CONTROL
(a) QUALIFICATION FOR BENEFIT. A Participant who (1) terminates employment
with the Employer following a Change in Control and (2) is not at the
time of such termination of employment eligible for a Normal Retirement
Benefit, an Early Retirement Benefit, an Involuntary Termination
Benefit or a Disability Benefit, shall be eligible for a Change in
Control Benefit commencing at the time set forth in Section (c) of this
Article.
(b) CHANGE IN CONTROL. For purposes of the Plan, a "change in control"
shall have occurred if any of the events described in the following
paragraphs (i) through (v) of this Section (b) occur and if none of the
circumstances described in the succeeding unnumbered paragraphs of this
Section (b) also exist or subsequently come into existence:
(i) The Company is merged or consolidated or reorganized into or
with another corporation or other legal person, and as a
result of such merger, consolidation or reorganization less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction is held in the aggregate by
the holders of Voting Stock (as that term is hereafter
defined) of the Company immediately prior to such transaction;
or
(ii) The Company sells or otherwise transfers all or substantially
all of its assets to any other corporation or other legal
person, and as a result of such sale or transfer less than a
majority of the combined voting power of the then-outstanding
securities of such corporation or person immediately after
such sale or transfer is held in the aggregate by the holders
of Voting Stock of the Company immediately prior to such sale
or transfer; or
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange
Act) of securities representing 20% or more of the combined
voting power of the then-outstanding securities entitled to
vote generally in the election of directors of the Company
("Voting Stock"); or
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a
change in control of the Company has or may have occurred or
will or may occur in the future pursuant to any then-existing
contract or transaction; or
(v) If during any period of two consecutive years individuals who,
at the beginning of any such period, constitute the Board
cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election
by the Company's stockholders, of each director of the Company
first elected during such period was approved by a vote of at
least two-thirds of the Board then still in office who were
directors of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of paragraph (iii) or (iv) of
this Section (b), a "Change in Control" shall not be deemed to have
occurred for purposes of the Plan either (i) solely because (A) the
Company (B) an entity in which the Company directly or indirectly
beneficially owns 50% or more of the voting securities, or (C) any
Company-sponsored employee stock ownership plan or any other employee
benefit plan of the Company, either files or becomes obligated to file
a report or a proxy statement under or in response to Schedule 13D,
Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule,
form or report or item therein) under the Exchange Act, disclosing
beneficial ownership by it of shares of Voting Stock whether in excess
of 20% or otherwise, or because the Company reports that a change in
control of the Company has or may have occurred or will or may occur in
the future by reason of such beneficial ownership or (ii) solely
because of a change in control of any Subsidiary by which a Participant
may be employed. Notwithstanding the foregoing provisions of paragraphs
(i) through (iv) of this Section (b), if, prior to any event described
in paragraphs (i) through (iv) of this Section (b) instituted by any
person not an officer or director of the Company, or prior to any
disclosed proposal instituted by any person not an officer or director
of the Company which could lead to any such event, the management of
the Company proposes any restructuring of the Company which ultimately
leads to an event described in paragraphs (i) through (iv) of this
Section (b) pursuant to such management proposal, then a "Change in
Control" shall not be deemed to have occurred for purposes of this
Plan.
If (i) any agreement to merge, consolidate, reorganize or sell or
otherwise transfer assets referred to in paragraph (i) or (ii) of this
Section (b) is terminated without such merger, consolidation,
reorganization or sale or transfer having been consummated, (ii) the
person filing a Schedule 13D or Schedule 14D-1 referred to in paragraph
(iii) of this Section (b) files an amendment to any such Schedule
disclosing that it no longer is the beneficial owner of securities
representing 20% or more of the Voting Stock of the Company, or (iii)
the Company reports that the change of control which it reported in the
filing referred to in paragraph (iv) of this Section (b) will not in
fact occur, the Board may, by notice to Participants, declare that a
Change in Control has not occurred for purposes of the Plan
(notwithstanding the occurrence of the previous events referred to in
paragraph (i), (ii), (iii) or (iv) of this Section (b)), provided that
such declaration shall be without prejudice to any exercise by
Participants of rights under this Article XII that may have occurred
prior to such declaration.
As used in this Article XII, the term "Subsidiary" means a corporation,
company, partnership, or other entity (i) more than 50% of the
outstanding shares or securities (representing the right to vote for
the election of directors or other managing authority) of which are, or
(ii) which does not have outstanding shares or securities (as may be
the case in a partnership, joint venture or unincorporated
association), but more than 50 percent of whose ownership interest
representing the right generally to make decisions for such other
entity is, owned or controlled, directly or indirectly, by the Company,
but such corporation, company, or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists.
(c) COMPUTATION OF AMOUNT OF CHANGE IN CONTROL BENEFIT. A Participant who
is eligible for a Change in Control Benefit shall be entitled to
receive, commencing at the later of his Normal Retirement Date or the
first day of the month after his application therefor, a monthly
Supplemental Retirement Benefit equal to 50% of the Participant's Final
Average Monthly Compensation multiplied by his Service Fraction,
reduced by the sum of:
(i) 50% of the monthly Social Security Benefit payable to the
Participant commencing on his Normal Retirement Date; and
(ii) the monthly benefit (expressed as a single life annuity not
including any temporary supplements) payable to the
Participant under the terms of the Qualified Retirement Plan
commencing on his Normal Retirement Date (as herein defined),
assuming (i) for purposes of determining whether the
Participant had a vested benefit under the Qualified
Retirement Plan and when the Participant
could elect commencement of his benefit under the Qualified
Retirement Plan (but not for purposes of determining the
amount thereof), that the Participant had sufficient service
under the Qualified Retirement Plan to have a vested benefit
under the Qualified Retirement Plan and a right to commence
receiving such benefit at his Normal Retirement Date, and (ii)
that the Participant elected commencement of such benefit at
his Normal Retirement Date.
The Participant, at his election, may commence his benefits under this
Article on the first day of any month after his date of retirement and
before his Normal Retirement Date, but in that case his monthly benefit
computed under the preceding sentence shall be actuarially reduced
using the assumptions identified in Article III(a)(1) for each full
month by which the date of commencement precedes the Participant's
Normal Retirement Date.
(d) FORM AND DURATION OF PAYMENT. The form of a Participant's benefit under
this Article shall be the same form as determined under the terms of
the Qualified Retirement Plan (single life annuity for an unmarried
Participant or 50% Joint and Survivor Annuity for a married
Participant), except as may be provided in Article XIV, as applicable.
ARTICLE XII
DEATH BENEFIT
(a) Pre-Retirement
(i) QUALIFICATION FOR BENEFIT. Subject to the provisions of
Article IV, if a Participant dies with five (5) years of
Company Service but before commencing to receive payment of a
Supplemental Retirement Benefit (other than a Disability
Benefit), the surviving Spouse of such deceased Participant
shall be eligible for a Pre-Retirement Death Benefit
commencing at the time set forth in paragraph (ii) of this
Section.
(ii) COMPUTATION OF AMOUNT OF PRE-RETIREMENT DEATH BENEFIT. The
Pre-Retirement Death Benefit shall be a monthly benefit,
commencing on the later of the Participant's Normal Retirement
Date (or, in the case of a Participant who dies after his
Normal Retirement Date, on the first day of the month
following the Participant's death) or the first day of the
month after the surviving Spouse's application therefor, equal
in amount to the monthly Supplemental Retirement Benefit to
which the deceased Participant would have been entitled
commencing on his Normal Retirement Date (or, in the case of a
Participant who dies after his Normal Retirement Date, on the
first day of the month following his death).
In the case of the surviving Spouse of a Participant who dies
before his Normal Retirement Date, the surviving Spouse, at
the surviving Spouse's election, may commence the
Pre-Retirement Death Benefit on the first day of any month
after the later of the date on which the Participant would
have reached age 60 had he not died or the date of the
Participant's death and before the Participant's Normal
Retirement Date, but in that case the Pre-Retirement Death
Benefit shall be actuarially reduced using the assumptions
specified in Article III(a)(1) for each
full month by which the date of commencement precedes the
Participant's Normal Retirement Date.
(iii) FORM AND DURATION OF PAYMENT. The Pre-Retirement Death Benefit
shall be a monthly benefit payable from the time of
commencement set forth in paragraph (ii) of this Section (a)
until the first day of the month coincident with the death of
the surviving Spouse.
(b) POST-RETIREMENT DEATH BENEFIT
(i) Qualification for Benefit. The surviving Spouse of a deceased
Participant who has (a) died while receiving Supplemental
Retirement Benefits (including Disability Benefits) under the
Plan and whose optional form of payment elected at retirement
provides for a survivor benefit, or (b) who has qualified for
a Disability Benefit but who has not yet commenced receiving
such benefits, shall be eligible for the Post-Retirement Death
Benefit described in paragraph (ii) of this Section.
(ii) COMPUTATION OF AMOUNT OF ANNUAL BENEFIT. The Post-Retirement
Death Benefit shall be a monthly benefit in an amount equal to
either (a) 100%, or (b) 50% (as elected by the Participant) of
the reduced Supplemental Retirement Benefit the deceased
Participant was receiving at the time of his death (or, in the
case of the death of a Participant entitled to a Disability
Benefit, would have been receiving had he commenced receiving
the benefit at the time of his death).
(iii) COMMENCEMENT, FORM AND DURATION OF PAYMENT. The
Post-Retirement Death Benefit shall commence as of the first
day of the month immediately following the date of the
Participant's death, and shall continue to be paid as of the
first day of each month thereafter until the first day of the
month coincident with the death of the surviving Spouse.
(c) MINIMUM DEATH BENEFIT
(i) PRE-RETIREMENT SURVIVING SPOUSE BENEFIT. As provided in
Section (a) hereof, at the death of a Participant who
satisfies the requirements, monthly death benefits are payable
to an eligible surviving Spouse for her remaining lifetime. If
the surviving Spouse has not received at least five years of
monthly benefit payments at her death, the remainder of the
five years of monthly benefit payments, if any, will be made
monthly to the Beneficiary named by the surviving Spouse. If
no Beneficiary is so named, the remaining payments, if any,
will be made to the Spouse's estate. If it is determined by
the Board of Directors (in its sole discretion) that the
remaining benefits shall be paid in a single sum, this amount
will be computed as noted in subsection (iii) below
(ii) PRE-RETIREMENT BENEFIT WITH NO SPOUSE. Notwithstanding the
other sections of Article XII, a death benefit will be payable
at the death of a Participant who is otherwise eligible under
Sections (a) above, but has no surviving Spouse (or has no
eligible surviving Spouse) at his death. The monthly death
benefit will be determined and start as if the Participant has
a surviving Spouse and will be paid to a Beneficiary, named by
the Participant, as provided in Section (a) above. For
purposes of the Pre-Retirement Death Benefit only, a minimum
of five years of
monthly payments will be made to the Participant and/or the
named Beneficiary under this provision. If no Beneficiary is
named at the death of the Participant, any payments under this
Section will be payable to the Participant's estate. The Board
of Directors (in its sole discretion) shall determine if the
remaining payments shall be payable in a single sum amount.
This amount would be computed as noted in subsection (iii)
below.
(iii) DETERMINATION OF SINGLE SUM DEATH BENEFIT VALUE. If decided by
the Board of Directors (in its sole discretion) that a single
sum amount shall be payable under the five year minimum
payments provisions of (c)(i) above, it will have the single
sum amount determined actuarially, based on the circumstances
of the benefits. Where appropriate, the GAM 83 Mortality
Table, 7-1/2% interest, ages of the Participant and/or Spouse,
and the timing of the payment of benefits will be used. The
single sum value will be equal to the present value of the
immediate or deferred payment recognizing the remainder of any
five year number of payments due. The Board of Directors (in
its sole discretion) does have the option of changing these
assumptions, if they are deemed inappropriate and unreasonable
at the time the single sum amount is determined.
ARTICLE XIII
PLAN ADMINISTRATION
The Company shall be responsible for the general administration of the Plan and
for carrying out the provisions hereof. The Company shall have any and all power
and authority (including discretion with respect to the exercise of that power
and authority) which shall be necessary, advisable, desirable or convenient to
enable it to carry out its duties under the Plan, including the powers: to
resolve all questions arising under the Plan, such as questions of construction
and interpretation; to adopt such rules and regulations as the Company may deem
necessary or appropriate to provide for the administration of the Plan; to
delegate such of its responsibilities and authorities hereunder to such
individuals, committees or entities as the Company shall deem appropriate; and
to take such further actions as the Company shall deem advisable in the
administration of the Plan. The decision of the Company on any question
concerning the interpretation or administration of this Plan shall be final and
conclusive and nothing in the Plan shall be deemed to give a Participant, his
surviving Spouse or other beneficiaries, or his or their legal representatives,
any right to payments except to such extent, if any, as the Company may have
determined subject to all the terms and conditions of the Plan. No member of the
Board or the Committee, nor any individual, committee or entity to which any of
the responsibilities or authority of the Committee or the Company hereunder are
delegated, shall be liable for any act or determination made, in good faith, in
regard to this Plan.
ARTICLE XIV
OPTIONAL FORMS OF PAYMENT
(a) ANNUITY OPTIONS. Any married Participant in the Plan, in lieu of the
automatic 50% Joint and Survivor form of payment, may elect to receive
his benefit in any of the following optional forms of payment:
OPTION 1: 100% JOINT AND SURVIVOR ANNUITY. A reduced monthly Retirement
Benefit which is Actuarially Equivalent to the single life annuity
under the Plan and is payable to the Participant for his life, with
continuance of monthly payments in such reduced amount after his death
to his surviving Spouse until the first day of the month coincident
with the death of the surviving Spouse.
OPTION 2: SINGLE LIFE ANNUITY. A monthly Supplemental Retirement
Benefit payable to the Participant for his life with no continuation of
benefits after his death.
(b) TIMING AND MANNER OF ELECTION. Any Participant for whom Section (a)
applies, shall make such election to waive the automatic form of
payment and in lieu thereof, to receive an alternative annuity form of
payment allowed hereunder (or a lump sum pursuant to Section (c) below)
in writing on a form provided by the Company, which form shall be filed
with the Company prior to the Participant's termination of employment
for any reason.
(c) LUMP SUM PAYMENTS. Notwithstanding any other provision of the Plan, but
subject to the approval of the Committee as described in Section (d) of
this Article, any Participant under the Plan may elect to receive the
benefits payable to him under the Plan, other than benefits payable
pursuant to Article X, in the form of a single lump sum payment. The
lump sum payment described in the preceding sentence shall be
calculated by converting the benefits otherwise payable to the
Participant at the time such benefits are to commence into a lump sum
amount of equivalent actuarial value when computed using the actuarial
factors described in Section (c)(ii) of Article X of the Plan. A
Participant who elects to receive a single lump sum payment pursuant to
the second preceding sentence may further elect that, in the event that
the Participant dies while employed, benefits payable as a result of
the Participant's death, other than benefits payable pursuant to
Section (c)(i) of Article XII of the Plan, shall be paid to the
Participant's Spouse without taking into account the election made
under the second preceding sentence. Any election by a Participant to
receive benefits under the Plan in the form of a single lump sum
payment shall be in writing on a form provided by the Company, which
form shall be filed with the Company (a) prior to the Participant's
termination of employment with the Employers because of involuntary
termination of employment (including by reason of disability) or death
or (b) at least 180 days prior to the Participant's voluntary
termination of employment with the Employers. Subject to the approval
of the Committee, any such election may be changed or revoked by the
Participant at any time and from time to time by the filing of a later
written election with the Company; provided, that any election made
less than 180 days prior to a Participant's voluntary termination of
employment shall not be valid, and in such case, payment shall be made
in accordance with the latest valid election of the Participant. The
payment by the Employers of a lump sum amount to a Participant (or his
Spouse, Beneficiary or
estate) pursuant to this Section shall discharge all obligations of the
Employers to such Participant (or his Spouse, Beneficiary or estate)
under the Plan. Payment of benefits in the form of a single lump sum
payment pursuant to the election of a Participant under this Article is
subject to the approval of the Committee, which may, in its sole and
absolute discretion, approve or withdraw its prior approval of such
election at any time prior to the date the lump sum payment is actually
paid to the Participant and instead require that benefits be paid in
such other form as is permitted by the Plan.
ARTICLE XV
MISCELLANEOUS
(a) FUNDING. The obligation of the Employers to pay Supplemental Retirement
Benefits under the Plan constitutes the unsecured promise of the
Employers to make payments from their general assets, and no
Participant, Spouse or Beneficiary shall have any interest in, or a
lien or prior claim upon, any property of the Employers. With respect
to the Supplemental Retirement Benefits under the Plan, each
Participant, Spouse or Beneficiary shall have the status of a general
unsecured creditor of the Participant's Employer. The Company may
establish a so-called "rabbi trust" to hold funds, stock or other
securities to be used in payment of the obligations of the Employers
under the Plan, and may fund such trust; provided, however, that any
funds contained therein shall remain subject to the claims of the
general creditors of the Company or any other Employer for which the
Participant performs services. It is the intention of the Employers
that the Plan be unfunded for tax purposes and for purposes of Title I
of ERISA. No liability for the payment of benefits under the Plan shall
be imposed upon any officer, director, employee or stockholder of the
Company or any other Employer, or upon the Board, the Committee or any
member thereof.
(b) NO GUARANTY OF BENEFITS. Nothing contained in this Plan shall
constitute a guaranty by any Employer, the Committee or the Board that
the assets of any Employer will be sufficient to pay any benefit
hereunder.
(c) ASSIGNMENTS AND RESTRICTIONS. To the extent permitted by law, and
except as otherwise provided in this Section (c), no right or interest
of a Participant or Spouse under this Plan shall be transferable or
assignable (either at law or in equity), nor shall any such right or
interest be subject to alienation, anticipation, encumbrance,
attachment, garnishment, levy, execution or other legal or equitable
process of any kind, voluntary or involuntary, or in any manner be
liable for or subject to the debts of any Participant or Spouse. If a
Participant shall attempt to or shall transfer, assign, alienate,
anticipate, sell, pledge or otherwise encumber his benefits hereunder
or any part thereof, or if by reason of his bankruptcy or other event
happening at any time such benefits would devolve upon anyone else or
would not be enjoyed by him, then the Company, in its discretion, may
terminate his interest in any such benefit to the extent the Company
considers necessary or advisable to prevent or limit the effects of
such occurrence. Termination shall be effected by filing a "termination
declaration" with the Committee and making reasonable efforts to
deliver a copy to the Participant (the "Terminated Participant") whose
interest is affected thereby. As long as the Terminated Participant is
alive, any benefits affected
by the termination shall be retained by the Company and, in the
Company's sole and absolute judgement, may be paid to or expended for
the benefit of the Terminated Participant, his spouse, his children or
any other person or persons in fact dependent upon him in such a manner
as the Company shall deem proper. Upon the death of the Terminated
Participant, all benefits withheld from him and not paid to others in
accordance with the preceding sentence shall be paid to the Terminated
Participant's surviving Spouse or, if none, to the Terminated
Participant's then living descendants, including adopted children, PER
STIRPES.
Notwithstanding the foregoing, amounts payable under this Plan may be
withheld by the Company as they become due to the extent necessary to
cover any debts or other obligations owed to the Company by the
Participant, but only if such debts or other obligations are
acknowledged as such in writing by the Participant or are confirmed as
such by a final, nonappealable order of a court of competent
jurisdiction.
(d) HEADINGS. The various headings used in this Plan are for convenience
only and shall not be used in interpreting the text of the Article,
Section, paragraph or subparagraph in which they appear.
(e) EMPLOYMENT. The establishment of this Plan shall not be construed to
give any Participant the right to be retained in the service of the
Employer.
(f) APPLICABLE LAW. The validity, interpretation, construction and
performance of this Plan shall be governed by the internal substantive
laws of the State of Ohio, without giving effect to the principles of
conflict of laws of such State.
(g) BINDING EFFECT ON EMPLOYER, PARTICIPANTS, SPOUSES AND THEIR SUCCESSORS.
This Plan shall be binding and inure to the benefit of any Employer or
its successors and assigns, and the Participants, Spouses and their
heirs, legatees, distributees, executors, administrators or other legal
representatives.
(h) AMENDMENT AND DISCONTINUANCE. The Company reserves the right in its
sole discretion to amend or terminate this Plan at any time with regard
to itself or any Employer, provided that no such amendment or
termination shall affect any benefits then being paid to Participants
or Spouses under the Plan as of the date of such termination and the
rights of or with respect to all other Participants at the time of any
such termination to immediate or deferred Supplemental Retirement
Benefits shall be determined as if the employment of each such
Participant had been involuntarily terminated, but not Terminated for
Cause, on the date of such termination. After any termination of the
Plan, each Employer shall remain obligated to pay those benefits
described in the preceding sentence in accordance with the terms of the
Plan in effect immediately before such termination.
(i) PARTICIPANT INFORMATION. Each Participant shall keep the Committee
informed of his current address and the current address of his Spouse,
if applicable. The Participant shall
furnish to the Committee any and all information deemed by the
Committee to be necessary or desirable for the proper administration of
the Plan.
IN WITNESS WHEREOF, this Diebold, Incorporated Supplemental Employee Retirement
Plan has been executed this 15 day of July, 2002, effective as of July 1, 2002.
DIEBOLD, INCORPORATED
By: /s/ Charles B. Scheurer
--------------------------------
Its: Vice President, Human Resources