EXHIBIT 10.9
ABERCROMBIE & FITCH CO.
________________________________________________________________________________
ABERCROMBIE & FITCH NONQUALIFIED
SAVINGS AND SUPPLEMENTAL RETIREMENT PLAN
FORMERLY KNOWN AS THE
ABERCROMBIE & FITCH CO. SUPPLEMENTAL RETIREMENT PLAN
________________________________________________________________________________
Effective July 1, 1998
As Amended and Restated Effective January 1, 2001
ABERCROMBIE & FITCH NONQUALIFIED
SAVINGS AND SUPPLEMENTAL RETIREMENT PLAN
(January 1, 2001 Restatement)
TABLE OF CONTENTS
ARTICLE PAGE
ARTICLE I INTRODUCTION...........................................................................2
ARTICLE II DEFINITIONS............................................................................2
ARTICLE III PARTICIPATION..........................................................................4
ARTICLE IV ACCOUNT................................................................................5
ARTICLE V DEFERRAL CREDITS.......................................................................5
ARTICLE VI MATCHING CREDITS.......................................................................7
ARTICLE VII EMPLOYER CREDITS.......................................................................8
ARTICLE VIII EARNINGS CREDITS.......................................................................8
ARTICLE IX VESTING................................................................................9
ARTICLE X HARDSHIP WITHDRAWALS...................................................................9
ARTICLE XI RETIREMENT BENEFIT....................................................................10
ARTICLE XII RETIREMENT PAYMENT FORM...............................................................10
ARTICLE XIII PRE-RETIREMENT TERMINATION............................................................10
ARTICLE XIV PLAN FUNDING..........................................................................11
ARTICLE XV CHANGE OF CONTROL.....................................................................11
ARTICLE XVI GENERAL BENEFIT PROVISIONS............................................................12
ARTICLE XVII PLAN ADMINISTRATION...................................................................13
ARTICLE XVIII CONSTRUCTION..........................................................................14
ARTICLE XIX AMENDMENT AND TERMINATION.............................................................14
ARTICLE XX MISCELLANEOUS.........................................................................15
i
ABERCROMBIE & FITCH NONQUALIFIED
SAVINGS AND SUPPLEMENTAL RETIREMENT PLAN
(January 1, 2001 Restatement)
ARTICLE I
INTRODUCTION
1.1. Effective Date. Abercrombie & Fitch Co., a Delaware corporation
(the "Company"), adopted the Abercrombie & Fitch Co. Supplemental Retirement
Plan (the "Plan") effective July 1, 1998.
1.2. Restatement. Effective January 1, 2001, the Company hereby amends
and restates the Plan. The Company also renames the Plan as the "Abercrombie &
Fitch Nonqualified Savings and Supplemental Retirement Plan."
1.3. ERISA Top Hat Plan. The Company intends the Plan to be an unfunded
deferred compensation plan for a select group of management or highly
compensated employees, within the meaning of Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA.
ARTICLE II
DEFINITIONS
2.1. "Account" means the account maintained for a Participant under
Article IV, consisting of the following sub-Accounts: Deferral Account, Matching
Account, Retirement Account, Discretionary Account and Limited Account.
2.2. "Affiliate" means (i) any corporation that is a member of a
controlled group of corporations, as defined in Section 414(b) of the Code, of
which the Company is a member, (ii) any other trade or business (whether or not
incorporated) that is under common control, as defined in Section 414(c) of the
Code, with the Company and (iii) any business that is a member of an affiliated
service group, as defined in Section 414(m) of the Code, of which the Company is
a member.
2.3. "Beneficiary" means the person(s) designated by a Participant on a
form prescribed by the Committee to receive his Account upon his death (or, if
none, his beneficiary(ies) under the SARP). A Participant may change his
Beneficiary in accordance with procedures established by the Committee from time
to time.
2.4. "Bonus" means the semi-annual performance bonus (payable in August
and February) which may be payable to a Participant by an Employer.
2.5. "Code" means the Internal Revenue Code of 1986, as amended.
2.6. "Committee" means the Administrative Committee under the SARP. The
Committee is the "administrator" of the Plan for purposes of ERISA.
2.7. "Company" means Abercrombie & Fitch Co., a Delaware corporation,
and any successor.
2.8. "Compensation Committee" means (i) the Compensation Committee of
the Company's Board of Directors or (ii) if none exists, the Company's Board of
Directors.
2.9. "Deferral Account" means the Participant's sub-Account consisting
of (i) his Deferral Credits and attributable Earnings Credits and (ii) the
balance of his Deferral Account under the Plan immediately before the
Restatement Effective Date.
2.10. "Deferral Agreement" means an agreement with an Employer under
which a Participant (i) makes a Deferral Election, (ii) elects a Retirement
Payment Form and (iii) provides any other information required by the Committee.
2.11. "Deferral Credits" means the Participant's deferred amounts of
Salary or Bonus under Article V.
2.12. "Deferral Election" means the Participant's election to defer
Salary or Bonus under Article V.
2.13. "Disability" or "Disabled" means that a Participant has become
disabled under the terms of his Employer's long-term disability program, or if
none, as determined by the Committee.
2.14. "Discretionary Account" means the Participant's sub-Account
consisting of (i) his Discretionary Credits and attributable Earnings Credits
and (ii) the balance of his Discretionary Account under the Plan immediately
before the Restatement Effective Date.
2.15. "Discretionary Credits" means the employer amounts described in
Section 7.2.
2.16. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
2.17. "Earnings Credits" means the earnings amounts described in
Article VIII.
2.18. "Effective Date" means July 1, 1998, the original effective date
of the Plan.
2.19. "Eligible Employee" means each associate of an Employer who is
(i) among a select group of management or highly compensated employees of the
Employer, within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA and (ii) designated by the Committee for participation in the Plan.
2.20. "Employer" means the Company and each Affiliate that is a
participating employer under the SARP and elects to participate in the Plan by
action of its board of directors.
2.21. "Enrollment Period" means the period, preceding a Plan Year, that
is specified from time to time by the Committee.
2.22. "Limited Account" means the Participant's sub-Account consisting
of the amounts transferred to the Plan for him from The Limited Supplemental
Retirement Plan and/or The Limited Deferred Compensation Plan as of June 30,
1998.
2.23. "Matching Account" means the Participant's sub-Account consisting
of his (i) Matching Credits and attributable Earnings Credits and (ii) the
balance of his Matching Account under the Plan immediately before the
Restatement Effective Date.
2.24. "Matching Credits" means the various matching amounts described
in Article VI, consisting of his Base, Additional and Lost SARP Matching Credits
thereunder.
2.25. "Participant" means an associate of an Employer who becomes a
Participant of the Plan under Article III.
2.26. "Participation Date" means, as specified by the Committee, (i) a
Participant's hire date or (ii) the first day of an Enrollment Period.
2.27. "Plan" means the Abercrombie & Fitch Nonqualified Savings and
Supplemental Retirement Plan, as set forth herein, and any amendments hereto.
2.28. "Plan Credits" means the Deferral Credits, Matching Credits,
Retirement Credits and Discretionary Credits.
2.29. "Plan Year" means the calendar year.
2.30. "Restatement Effective Date" means January 1, 2001, the effective
date of the Plan as set forth herein.
2.31. "Retirement Account" means the Participant's sub-Account
consisting of (i) his Retirement Credits and attributable Earnings Credits and
(ii) the balance of his Supplementary Account (if any) under the Plan
immediately before the Restatement Effective Date.
2.32. "Retirement Credits" means the employer amounts described in
Section 7.1.
2.33. "Retirement Payment Form" means the form of payment elected by
the Participant under Article XII (or otherwise provided thereunder) for the
payment of his retirement benefit under Article XI.
2.34. "SARP" means The Abercrombie & Fitch Co. Savings and Retirement
Plan.
2.35. "SARP Entry Date" means the Participant's entry date under the
SARP.
2.36. "Salary" means the base salary payable to a Participant by an
Employer.
2.37. "Termination of Employment" or "Terminates Employment" means that
the Participant has ceased to be a common law employee with the Company and all
Affiliates.
ARTICLE III
PARTICIPATION
3.1. Existing Participant. Each associate of an Employer who was a
participant of the Plan immediately prior to the Restatement Effective Date
shall become a Participant of the Plan effective as of the Restatement Effective
Date.
3.2. New Participant. On and after the Restatement Effective Date, each
Eligible Employee shall become a Participant of the Plan effective on the
Participation Date designated for him by the Committee.
3.3. Active Participation. Upon becoming a Participant, he shall be
eligible for Plan Credits and attributable Earnings Credits thereon, subject to
the terms hereof.
3.4. Suspension of Active Participation. A Participant shall cease to
be eligible for Plan Credits effective on the date (i) the Committee revokes his
status as an Eligible Employee under the Plan,
(ii) he otherwise ceases to be among a select group of management or highly
compensated employees of an Employer, as determined by the Committee in its sole
discretion, or (iii) of his Termination of Employment. The Participant shall
continue to receive attributable Earnings Credits under the Plan until his
Account has been distributed or forfeited under the terms of the Plan, provided,
however, that the Account of any Participant described in Section 3.4(ii) may be
distributed as soon as administratively practicable after such determination by
the Committee.
3.5. Participant Status. A Participant shall continue to be a
Participant of the Plan until his Account has been distributed or forfeited
under the terms of the Plan.
ARTICLE IV
ACCOUNT
4.1. Account. Upon becoming a Participant, the Committee shall
establish and maintain for him an Account under the Plan, with sub-Accounts for
applicable Plan Credits.
4.2. Maintenance. Effective at the times provided under the Plan (or
otherwise determined by the Committee), the Committee shall (i) credit the
Participant's sub-Accounts with applicable Plan Credits and attributable
Earnings Credits thereon and (ii) reduce his Account by any withdrawals,
distributions, forfeitures and Plan administration expenses.
4.3. Participant Statements. From time to time, and upon the request of
any Participant, the Committee shall furnish each Participant a written
statement of his Account.
ARTICLE V
DEFERRAL CREDITS
5.1. Deferral Credits. A Participant shall receive "Deferral Credits"
under the Plan equal to the deferred amounts of his Salary or Bonus under this
Article.
5.2. Deferral Election--Initial Plan Eligibility. A Participant may
make a Deferral Election upon initial eligibility under the Plan as follows:
(a) Existing Participant: 2001 Plan Year. An existing
Participant under Section 3.1 may make a Deferral Election during the
period from November 1, 2000 through December 22, 2000 to defer any
percentage of (i) his Salary (up to 75%) for each payroll period of his
services rendered on and after January 1, 2001 through December 31,
2001 or (ii) his Bonus (up to 100%) payable in February 2001 or August
2001.
(b) New Hire Date Participant. A new Participant under Section
3.2 whose Participation Date is his hire date may make a Deferral
Election within 30 days after his hire date to defer any percentage of
(i) his Salary (up to 75%) for each payroll period of his services
rendered after the 30th day following his hire date through the last
day of the Plan Year or (ii) his Bonus (up to 100%) payable at least
six months following his hire date.
(c) New Enrollment Period Participant. A new Participant under
Section 3.2 whose Participation Date is the first day of an Enrollment
Period may make a Deferral Election during such Enrollment Period to
defer any percentage of (i) his Salary (up to 75%) for each payroll
period of his services rendered on and after the January 1 after the
Enrollment Period through the
last day of the Plan Year or (ii) his Bonus (up to 100%) payable in
the August after the Enrollment Period or in the next following
February.
5.3. Deferral Election--Subsequent Enrollment Periods. After a
Participant's initial eligibility under Section 5.2, he may make a Deferral
Election during each Enrollment Period thereafter to defer any percentage of (i)
his Salary (up to 75%) for each payroll period of his services rendered on and
after the January 1 after the Enrollment Period through the last day of the Plan
Year or (ii) his Bonus (up to 100%) payable in the August after the Enrollment
Period or in the next following February.
5.4. Deferral Election--Mid-Year Changes. During the Plan Year, a
Participant may make a change regarding a Deferral Election as follows:
(a) Modification. Once during the Plan Year, a Participant who
has made a Deferral Election of his Salary or Bonus for the Plan Year
may modify the deferral percentage thereof, provided that the new
percentage (i) of his Salary does not exceed 75% and applies only to
Salary for those pay periods of his services rendered after the date of
the modification through the last day of the Plan Year and (ii) of his
Bonus does not exceed 100% and applies only to a Bonus payable at least
six months after the modification, i.e., a modification made by
February 1 will apply to the Bonus payable in the following August and
a modification made by August 1 will apply to the Bonus payable in the
following February.
(b) New Election. Once during the Plan Year, a Participant who
has not made a Deferral Election of his Salary or Bonus for the Plan
Year may make a Deferral Election for the Plan Year hereunder, provided
that the deferral percentage (i) of his Salary does not exceed 75% and
applies only to Salary for those pay periods of his services rendered
after the date of the Deferral Election through the last day of the
Plan Year and (ii) of his Bonus does not exceed 100% and applies only
to a Bonus payable at least six months after the Deferral Election,
i.e., a Deferral Election hereunder made by February 1 will apply to
the Bonus payable in the following August and a Deferral Election
hereunder made by August 1 will apply to the Bonus payable in the
following February.
(c) Suspension. At any time during the Plan Year, a
Participant who has made a Deferral Election of his Salary or Bonus for
the Plan Year may suspend his Deferral Election, provided that the
suspension applies only (i) to Salary for those pay periods of his
services rendered after the suspension through the last day of the Plan
Year and (ii) to a Bonus payable at least six months after the
suspension, i.e., a suspension made by February 1 will apply to the
Bonus payable in the following August and a suspension made by August 1
will apply to the Bonus payable in the following February. Further, the
Participant cannot make another Deferral Election until the next
Enrollment Period under Section 5.3.
5.5. Deferral Agreement. A Participant shall (i) make each Deferral
Election of Salary or Bonus pursuant a Deferral Agreement, (ii) elect a
Retirement Payment Form thereunder and (ii) file the Deferral Agreement with his
Employer by the end of the applicable election period prescribed under Section
5.2 or 5.3 or as permitted under Section 5.4(b). A Participant shall change or
suspend a Deferral Election under Section 5.4(a) or (c) pursuant to a change in
his current Deferral Agreement.
5.6. Evergreen Election. A Participant's Deferral Election (or
modification or suspension thereof) under this Article shall continue to apply
to Salary and Bonus in future Plan Years until the Participant makes a
subsequent Deferral Election under Section 5.3 or otherwise makes a change
regarding his Deferral Election under Section 5.4.
5.7. Deferral Account. A Participant's Deferral Credits of Salary or
Bonus shall be credited to his Deferral Account effective as of the pay period
or date the Salary or Bonus would have been paid to him (or at such later date
as determined by the Committee).
ARTICLE VI
MATCHING CREDITS
6.1. Base Matching Credit. For each payroll period, a Participant who
has a Deferral Election of Salary or Bonus in effect for the payroll period
shall receive a "Base Matching Credit" under the Plan equal to 100% of his
Deferral Credits for the payroll period with respect to the first 3% of his
Salary and Bonus.
6.2. Additional Matching Credit. For each Plan Year, a Qualifying SARP
Participant shall receive an "Additional Matching Credit" under the Plan equal
to 3% of his Excess Compensation for the Plan Year. For purposes hereof:
(a) "Qualifying SARP Participant" is a Participant who (i) is
a participant of the SARP during the Plan Year and (ii) has a Deferral
Election of Salary in effect under the Plan equal to at least 3% of his
"gross" Salary (i.e., before reduction by his Deferral Credits) for the
entire Plan Year (or the portion thereof following his Participation
Date).
(b) "Excess Compensation" for a Plan Year means (i) a
Participant's "gross" Salary and Bonus (i.e., before reduction by his
Deferral Credits) for the Plan Year (or the portion thereof following
his SARP Entry Date), over (ii) his Adjusted Compensation for the Plan
Year.
(c) "Adjusted Compensation" means the lesser of (i) the annual
maximum compensation limit in effect under Section 401(a)(17) of the
Code or (ii) the Participant's "net" Salary and Bonus (i.e., after
reduction by his Deferral Credits) for the Plan Year (or the portion
thereof following his SARP Entry Date).
6.3. Lost SARP Matching Credit. At the discretion of the Committee, for
each Plan Year, a Qualifying SARP Participant shall receive a "Lost SARP
Matching Credit" under the Plan equal to the Forfeited SARP Matching
Contributions (including any attributable earnings thereon). For purposes
hereof:
(a) For purposes of this Section 6.3, "Qualifying SARP
Participant" is a Participant who (i) is a participant of the SARP
during the Plan Year and (ii) some or all of whose matching
contributions under the SARP were forfeited as a result of the SARP
nondiscrimination tests described in Section 6.3(b).
(b) "Forfeited SARP Matching Contributions" means the sum of
any (i) non-vested matching contributions under the SARP which have
been forfeited as a result of the ACP or multiple use tests under
Section 401(m) of the Code and (ii) vested or non-vested matching
contributions under the SARP which have been forfeited as a result of
being attributable to excess deferrals, excess contributions, excess
aggregate contributions or excess annual additions under Sections
402(g), 401(k)(3), 40l(m)(2), 415(c) or otherwise as required under
Section 401(a)(4) of the Code. The Forfeited SARP Matching
Contributions, therefore, do not include vested matching contributions
under the SARP which have been paid to a Participant as a result of the
foregoing SARP nondiscrimination tests and limitations.
6.4. Matching Account. A Participant's Base Matching Credits shall be
credited to his Matching Account effective as of each payroll period (or such
later date as determined by the Committee). A Participant's Additional and Lost
SARP Matching Credits shall be credited to his Matching Account effective as of
the last day of the Plan Year (or such later date as determined by the
Committee).
ARTICLE VII
EMPLOYER CREDITS
7.1. Retirement Credit. For each Plan Year, a Qualifying SARP
Participant shall receive a "Retirement Credit" under the Plan equal to his
Excess SARP Retirement Contribution for the Plan Year. For purposes hereof:
(a) For purposes of this Section 7.1, "Qualifying SARP
Participant" is a Participant who (i) is a participant of the SARP and
(ii) received a SARP Retirement Contribution for the Plan Year.
(b) "Excess SARP Retirement Contribution" for a Plan Year
means the (i) the SARP Retirement Contribution he would have received
under the SARP based on his "gross" Salary and Bonus (i.e., before
reduction by his Deferral Credits thereof) for the Plan Year (or the
portion thereof following his SARP Entry Date), calculated without
regard to the maximum compensation limit under Section 401(a)( 17) of
the Code and the maximum annual addition limits under Section 415 of
the Code, reduced by (ii) his actual SARP Retirement Contribution for
the Plan Year.
(c) "SARP Retirement Contribution" means the Company
Retirement Contribution, as defined and provided under the SARP, or
such other or successor non-elective employer contribution under the
SARP as specified by the Committee.
7.2. Discretionary Credit. For each Plan Year, the Compensation
Committee may award any particular Participant a "Discretionary Credit" under
the Plan equal to the amount determined by the Compensation Committee in its
sole discretion.
7.3. Retirement, Discretionary Accounts. A Participant's Retirement
Credit shall be credited to his Retirement Account effective as of the last day
of the Plan Year (or such other date as determined by the Committee). A
Participant's Discretionary Credit shall be credited to his Discretionary
Account effective as of the last day of the Plan Year (or such other date as
determined by the Compensation Committee).
ARTICLE VIII
EARNINGS CREDITS
8.1. Earnings Credits. The Committee shall calculate "Earnings Credits"
under the Plan for each sub-Account based on the (i) applicable Plan Earnings
Rate for the sub-Account, Employer or period of time and (ii) methods and
procedures as prescribed by the Committee from time to time.
8.2. Plan Earnings Rate. For purposes of this Article, the "Plan
Earnings Rate" means one or more fixed rates of interest established by the
Committee in its discretion. The Committee, therefore, may base a Plan Earnings
Rate on factors or indicia as it deems appropriate, including but not limited to
an Employer's cost of funds or borrowing.
8.3. Credit to Account. The Participant's Earnings Credits shall be
credited to his respective sub-Account effective as of the dates determined by
the Committee.
ARTICLE IX
VESTING
9.1. Deferral, Limited Accounts. A Participant shall at all times be
100% vested in his Deferral Account and Limited Account.
9.2. Matching, Retirement Accounts. A Participant shall have a vested
interest in his Matching Account and Retirement Account equal to the balances
thereof multiplied by the vesting percentage applicable to him under the vesting
schedule in effect under the SARP, based on his years of service thereunder, or
such greater vesting percentage as may be determined by the Committee.
9.3. Discretionary Account. A Participant shall have a vested interest
in his Discretionary Account in accordance with the vesting schedule as shall be
adopted by the Compensation Committee, in its sole discretion, in connection
with any Discretionary Credits under the Plan.
9.4. Forfeiture. Upon a Participant's Termination of Employment, the
non-vested portion of his Matching Account, Retirement Account and Discretionary
Account shall be immediately forfeited effective as of the date of his
Termination of Employment.
ARTICLE X
HARDSHIP WITHDRAWALS
10.1. Hardship Withdrawals. If a Participant incurs a Hardship before
his Termination of Employment, he may request a withdrawal from his Account of
an amount up to the amount to the extent reasonably needed to satisfy the
Hardship, increased for applicable taxes. The Hardship withdrawal shall be taken
from his sub-Accounts as determined by the Committee.
10.2. Hardship. For purposes of this Article, a "Hardship" means an
unforeseeable emergency, within the meaning of Treasury Regulation Section
1.457-2(h)(4), defined as (i) a severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or
his dependent (as defined in Section 152(a) of the Code), (ii) the loss of the
Participant's property due to casualty or (iii) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant. Hardship, therefore, does not include education or home
acquisition costs.
10.3. Other Resources. A Hardship withdrawal shall not be allowed to
the extent that the Hardship may be relieved (i) through reimbursement or
compensation by insurance or otherwise, (ii) by liquidation of the Participant's
assets, to the extent the liquidation of such assets would not itself cause
severe financial hardship or (iii) by cessation of Deferral Credits under the
Plan.
10.4. Committee Approval. The Committee shall have the sole discretion
to determine (i) whether the Participant has incurred a Hardship and (ii) the
amount of the Hardship withdrawal and applicable taxes.
ARTICLE XI
RETIREMENT BENEFIT
11.1. Normal Retirement. If a Participant Terminates Employment on or
after his 62nd birthday, the Plan shall pay him his Account in his Retirement
Payment Form as soon as practicable after the first day of the Plan Year
following his Termination of Employment.
11.2. Early Retirement. If a Participant Terminates Employment on or
after his 55th birthday and he has five years of service under the SARP, the
Plan shall pay him his Account in his Retirement Payment Form as soon as
practicable after the first day of the Plan Year following his Termination of
Employment.
11.3. Disability Retirement. If a Participant Terminates Employment due
to Disability, the Plan shall pay him his Account in his Retirement Payment Form
as soon as practicable after his benefit payments (if any) expire under his
Employer's long-term disability program.
11.4. Small Benefit. Notwithstanding the preceding Sections, if the
Participant's Account is less than $20,000 as of his Termination of Employment,
the Plan shall pay him his Account in a lump sum payment as soon as practicable
after his Termination of Employment.
11.5. Post-Retirement Death. If a Participant receives a normal, early
or disability retirement benefit in the Retirement Payment Form of five or ten
annual installments, and he dies prior to the expiration of the installments,
the Plan shall pay his Beneficiary the remaining installment payments at the
same time and manner as would be paid to the Participant.
ARTICLE XII
RETIREMENT PAYMENT FORM
12.1. Payment Form Election. A Participant shall elect in his Deferral
Agreement (or such other form prescribed by the Committee) the "Retirement
Payment Form" of his normal, early or disability retirement benefit under
Article XI from among the following payment options: (i) a lump sum payment,
(ii) five annual installments or (iii) ten annual installments. If a Participant
does not make an election, his Retirement Payment Form shall be ten annual
installments.
12.2. Election Change. Notwithstanding Section 12.1, a Participant may
subsequently elect an alternative payment option available under Section 12.1,
provided the subsequent election is made at least eighteen months prior to the
scheduled date of payment or commencement of his normal, early or disability
retirement benefit under Article XI.
12.3. Installment Calculation. If a Participant elects five or ten
annual installments, the amount of each installment payment thereof shall be
equal to (i) the balance of the Participant's Account as of the last day of the
applicable Plan Year, divided by (ii) the number of remaining annual
installments (including the installment being paid).
ARTICLE XIII
PRE-RETIREMENT TERMINATION
13.1. Termination of Employment. If a Participant Terminates Employment
before his normal, early or disability retirement under Article XI, the Plan
shall pay him the vested portion of his Account in a lump sum payment as soon as
practicable after his Termination of Employment.
13.2. Death. If a Participant dies before his normal, early or
disability retirement under Article XI, the Plan shall pay his Beneficiary the
vested portion of his Account in a lump sum payment as soon as practicable after
his death.
ARTICLE XIV
PLAN FUNDING
14.1. Unfunded Plan. The Plan shall be entirely unfunded. No Employer
shall segregate any of its assets for the payment of benefits under the Plan.
The right of a Participant or Beneficiary to a benefit under the Plan shall at
all times be an unsecured claim against the general assets of his Employer.
Neither the Participant nor any Beneficiary shall have any right in, or against,
specific assets of any Employer.
14.2. Employer Books, Records. Each Employer shall maintain on its
books and records the Account of every Participant who is its employee or former
employee. Each Employer shall (i) reflect the Accounts of its Participants in
its financial statements as an unfunded and unsecured promise to pay amounts
thereof in future to the Participant or his Beneficiary and (ii) pay from its
general assets all amounts required to be paid from its Accounts under the terms
of the Plan.
14.3. Company Guarantee. Notwithstanding Section 14.1 and 14.2, the
Company shall pay the benefits for such periods that an Employer is unable to
pay benefits. The foregoing guarantee by the Company shall constitute no more
than an unfunded and unsecured promise of payment and performance of the
Company, consistent with obligation of the Employer under the Plan.
ARTICLE XV
CHANGE OF CONTROL
15.1. Effect of Change of Control. As soon as possible and in no event
later than ten (10) days after a Change of Control, an Employer shall either (i)
pay each Participant or Beneficiary who is determined by the Committee to be
affected by the Change of Control the vested portion of his Account as of the
date of such Change of Control or (ii) irrevocably contribute to a grantor trust
described under Section 15.3 such amounts as sufficient to pay the benefits to
which such Participants and Beneficiaries are entitled as of the date of such
Change of Control. However, neither foregoing action shall occur if the
Committee, in its sole discretion, determines that the action is not necessary
to protect the affected Plan Participants and Beneficiaries against loss of
their Plan benefits.
15.2. Change of Control. For purposes of this Article, a "Change in
Control" means any of the following events: (i) the purchase or other
acquisition by any person, entity or group of persons, within the meaning of
section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the "Act"), or
any comparable successor provisions, of beneficial ownership (within the meaning
of Rules 13d-3 promulgated under the Act) of thirty (30) percent or more of
either the outstanding shares of common stock or the combined voting power of an
Employer's then outstanding voting securities, (ii) the approval by the
stockholders of an Employer of a reorganization, merger, or consolidation, if
immediately following such reorganization, merger or consolidation, persons who
were stockholders of the Employer immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more than fifty (50)
percent of the reorganized, merged or consolidated corporation's then
outstanding voting securities or (iii) the liquidation or dissolution of an
Employer or the sale of all or substantially all of an Employer's assets.
15.3. Grantor Trust. The trust for purposes of Section 15.1(ii) shall
be a trust for the payment of benefits under the Plan. The trust shall (i) have
a trustee independent of the Company, any Employer, the purchaser of the stock
or assets of the Employer or any affiliate of such persons, (ii) segregate
assets under the trust for the respective Employers of its Participants and
Beneficiaries, (iii) provide that segregated assets of an Employer thereunder
shall at all times be subject to the claims of the general creditors of the
Employer, (iv) provide that no Participant or Beneficiary shall have any
ownership rights in or to any assets of the trust and (v) contain such other
terms and conditions to prevent current taxation to Participants and
Beneficiaries of any amounts held thereunder.
15.4. Sale of Stock. In the event of the sale of stock of an Employer,
or the merger or consolidation of the Company or any Employer into or with any
other corporation or other entity, the Plan or portion thereof of the affected
Employer shall continue after such sale, merger or consolidation as an
obligation of the transferee, purchaser or successor entity.
15.5. Sale of Assets. In the event of the sale of assets of an
Employer, the Compensation Committee may in its sole discretion direct the
Employer to transfer assets equal to the Accounts of the affected Participants
and Beneficiaries to the purchaser thereof to be held under a nonqualified
deferred compensation plan of the purchaser or associated grantor trust
therefor. In such case, (i) the transferred Accounts shall become payable under
the terms of the recipient plan and (ii) a Participant who continues in
employment with the purchaser shall not be considered to have Terminated
Employment for purposes of the payment of benefits under the Plan. Any such
transfer shall be approved by the Compensation Committee and evidenced by an
amendment to the Plan therefor.
ARTICLE XVI
GENERAL BENEFIT PROVISIONS
16.1. Committee Discretion. The Committee has the unilateral right, at
any time and under any circumstances, to change the time or form of distribution
of any benefit or payment under the Plan.
16.2. Special Taxability Distributions. In the event any amount of a
Participant's Account becomes taxable to him or his Beneficiary, such taxable
amount shall be paid to him or his Beneficiary upon his written request or as
otherwise provided by the Committee. The amount paid shall be charged against
his Account.
16.3. Payment Withholding. Each Employer shall have the right to
withhold from any payments due under the Plan any required federal, state or
local taxes. If a trust is established pursuant to Section 15.1 (ii) upon a
Change in Control, the trustee of the trust shall provide for any such
withholding.
16.4. Employer Offset Right. If the Employer determines that a
Participant is for any reason indebted to the Employer or any Affiliate, the
Employer may offset such indebtedness, including any interest accruing thereon,
against payments otherwise due under the Plan to him or his Beneficiary. The
foregoing offset right also shall apply if a trust under Section 15.3 is
established upon a Change in Control.
16.5. Payments to Minors. Any amount payable to or for the benefit of a
minor, an incompetent person or any other person incapable of receipting
therefor may be paid to such person's guardian, to any trustee or guardian
holding assets for the benefit of such person, or to any person providing, or
reasonably appearing to provide, for the care of such person, and such payment
shall fully discharge the Plan and Employer with respect thereto.
16.6. Suspension of Payments in Event of Dispute. If the Committee is
in doubt concerning the entitlement of any person to any payment claimed to be
due under the Plan, the Committee may direct the Employer to suspend any such
payment until satisfied as to the entitlement of such person to such payment.
The Committee or the Employer may file or cause to be filed in any court of
competent jurisdiction an appropriate legal action or process in such form as
the Committee or the Employer deems appropriate, including an interpleader
action or an action for declaratory judgment, for a legal determination of the
entitlement of any person to any payment claimed to be due under the Plan. The
Committee and the Employer shall comply with any final order of the court in any
such suit, subject to appellate review, and the Participant and Beneficiaries
shall be similarly bound thereby.
16.7. Nonalienation of Benefits. None of the payments, benefits, or
rights of any Participant or Beneficiary shall be subject to any claim of any
creditor of such Participant or Beneficiary and, to the fullest extent permitted
by law, all such payments, benefits and rights shall be free from attachment,
garnishment or any other legal or equitable process available to any creditor of
such Participant or Beneficiary. No Participant or Beneficiary shall have the
right to alienate, commute, pledge, encumber or assign any of the benefits or
payments which the Participant or Beneficiary may expect to receive, contingent
or otherwise, under the Plan, except the right of a Participant to designate a
Beneficiary.
ARTICLE XVII
PLAN ADMINISTRATION
17.1. SARP Administrative Procedures. The Committee shall operate under
the same rules and procedures as the administrative committee under the SARP.
The provisions of the SARP related to its administrative committee,
administrative procedures and claims procedures are hereby incorporated by
reference in this Plan.
17.2. Administrative Authority, Responsibility. The Committee shall
have, in addition to the powers and responsibilities specifically provided for
in the Plan, all of the powers and responsibilities granted to the
administrative committee under the SARP that are applicable to the
administration and operation of this Plan, including the discretionary authority
to interpret and construe the Plan, including without limitation the authority
to make all determinations of eligibility and benefits under the Plan, to adopt
and revise rules and regulations relating to the Plan, and to make any other
determinations (including factual determinations) which it believes to be
necessary or advisable for the administration of the Plan.
17.3. Binding Decisions. The determinations and decisions by the
Committee shall be final and binding on associates, Participants and all other
persons except that denied claims for benefits shall be subject to review
pursuant to Section 17.4. Any determination under the SARP that is relevant to
the administration of this Plan shall be effective under this Plan as well as
under the SARP.
17.4. Claims Procedures. All claims for benefits must be made under the
rules and procedures then if effect under the SARP, including the SARP's
procedures with respect to review of denied claims.
17.5. Indemnity. The Company and each Employer shall indemnify to the
fullest extent by law each member of the Committee, Compensation Committee and
Board of Directors of the Company, and each officer and employee of the Company
and each Employer, in connection with the Plan.
17.6. Administration Expenses. The Committee, in its sole discretion,
may charge the Accounts with any administration expenses of the Plan.
ARTICLE XVIII
CONSTRUCTION
18.1. General. All Section references hereunder are to the Plan, unless
otherwise indicated. All pronouns apply without gender distinction. The headings
and captions apply for convenience and not for construction of the Plan.
18.2. Entire Agreement. The Plan, any subsequent amendments and any
elections thereunder shall constitute the entire agreement or contract between
an Employer and its Participants and Beneficiaries regarding the Plan. No
contrary written or oral statement regarding the Plan may be relied upon by any
Participant or Beneficiary.
18.3. Severability. If any term or provision of the Plan shall be held
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the remaining terms and provisions of the
Plan, and the Plan shall be construed and enforced as if such provision had not
been included.
18.4. Limitation of Liability. The liability of the Company, any
Employer, the Committee and Compensation Committee under the Plan shall be
limited to the obligations expressly set forth in the Plan. No term or provision
of the Plan may be construed to impose any further or additional duties,
obligations or costs on the foregoing persons not expressly set forth in the
Plan.
18.5. Third Parties. Nothing expressed or implied in this Plan is
intended or may be construed to give any person other than Participants and
Beneficiaries any rights or remedies under the Plan.
18.6. Governing Law. The laws of the State of Ohio applicable to
agreements to be performed in the State of Ohio shall apply in determining the
construction and validity of the Plan and all rights and obligations under the
Plan, except to the extent such laws are preempted by federal law.
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1. Amendment. The Company at any time may amend or modify the Plan.
However, no amendment shall reduce the balance in a Participant's Account.
19.2. Amendment Authority. The Committee shall have the authority to
approve any amendment. However, the Committee shall not approve any amendment
(i) which represents a major change in policy or involves significant financial
cost, (ii) to transfer amounts under the Plan to another nonqualified deferred
compensation plan under Section 15.5 or (iii) to suspend or terminate the Plan.
Each amendment shall be adopted by a proper officer of the Company.
19.3. Suspension. The Compensation Committee at any time may suspend
Deferral Credits or other Plan Credits under the Plan, either in whole or in
part with respect to any group of Participants. Upon suspension, all Accounts
shall continue to be credited with Earnings Credits and be maintained under the
Plan without distribution until otherwise permitted by the Plan.
19.4. Termination. The Compensation Committee may terminate the Plan,
either in whole or in part with respect to any group of Participants. Upon
termination, the Compensation Committee may, in its discretion, direct early
payment of the vested portion of any or all Accounts.
ARTICLE XX
MISCELLANEOUS
20.1. Tax Effects. Neither the Company, any Employer, Committee nor any
other person represents or guarantees that any particular federal, state or
local tax consequences shall occur as a result of any Participant's
participation in this Plan. Each Participant is encouraged to consult with his
own advisors regarding the tax consequences of participation in the Plan.
20.2. No Contract of Employment. The establishment of the Plan, any
modification thereof, the creation of an Account, and/or the making of any
payments under the Plan, shall not give any associate the right to remain in the
service of any Employer. All Participants and other associates shall remain
subject to discharge to the same extent as if the Plan had never been adopted.
20.3. Notices. Notices under the Plan shall be deemed to be
sufficiently given if sent by first class, registered or certified mail
addressed (i) to a Participant or Beneficiary at such person's last known
address as set forth in the books and records of the Employer or (i) to the
Company, any Employer, the Committee or Compensation Committee at the principal
offices of the Company.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officers as of the 26th day of Feb , 2000.
ABERCROMBIE & FITCH CO.
By: /s/ Wesley S. McDonald
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Its: VP-CFO
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