COASTCAST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
Page
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PREAMBLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Actuarial Equivalent . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.3 Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.4 Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.5 Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.6 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.7 Early Retirement Date. . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.8 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.9 Eligible Employee. . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.10 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.11 Estimated Section 401(k) Plan Benefit. . . . . . . . . . . . . . . . . . .4
1.12 Estimated Social Security Benefit. . . . . . . . . . . . . . . . . . . . .4
1.13 Final Average Salary . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.14 Good Reason. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.15 Independent Plan Administrator. . . . . . . . . . . . . . . . . . . . . .6
1.16 Normal Retirement Date . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.17 Participant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.18 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.19 Plan Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.20 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.21 Postponed Retirement Date. . . . . . . . . . . . . . . . . . . . . . . . .6
1.22 Prior Plan Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.23 Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.24 Retirement Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.25 Section 401(k) Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.26 Termination of Employment. . . . . . . . . . . . . . . . . . . . . . . . .7
1.27 Years of Participation . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.28 Years of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARTICLE II ELIGIBILITY FOR BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . .8
2.1 Eligibility to Participate . . . . . . . . . . . . . . . . . . . . . . . .8
2.2 Entitlement to Benefits. . . . . . . . . . . . . . . . . . . . . . . . . .8
(a) Normal or Early Retirement. . . . . . . . . . . . . . . . . . . . . .8
(b) Termination of Employment Prior to Retirement . . . . . . . . . . . .8
(c) Pre-Retirement Death Benefit. . . . . . . . . . . . . . . . . . . . .8
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(d) Post-Retirement Death Benefit . . . . . . . . . . . . . . . . . . . .9
(e) Disability Retirement Benefit.. . . . . . . . . . . . . . . . . . . .9
2.3 Forfeiture of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE III BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Amount of Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Form of Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.4 Payees Under Legal Disability. . . . . . . . . . . . . . . . . . . . . . 11
3.5 Withholding for Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.6 Mailing of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.7 Grantor Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.8 Protective Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV CHANGE OF CONTROL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 Entitlement to Benefits. . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 Full Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V OPERATION AND ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . 13
5.1 Plan Administrator Powers. . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 Composition of Plan Administrator. . . . . . . . . . . . . . . . . . . . 13
5.3 Plan Administrator Procedure . . . . . . . . . . . . . . . . . . . . . . 14
5.4 Notices and Communications . . . . . . . . . . . . . . . . . . . . . . . 14
5.5 Reporting and Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 14
5.6 Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI APPLICATION FOR BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . 15
6.1 Application for Benefits . . . . . . . . . . . . . . . . . . . . . . . . 15
6.2 Content of Denial. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.3 Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.4 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.5 Exhaustion of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII MISCELLANEOUS MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.1 Amendment or Termination . . . . . . . . . . . . . . . . . . . . . . . . 17
7.2 Effect of Reorganization or Transfer of Assets . . . . . . . . . . . . . 17
7.3 Rights of Participants . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4 Assignment of Benefits . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5 Other Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.7 Receipt or Release . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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Exhibit A Recognition of Predecessor Employer Service. . . . . . . . . . . . . . . 20
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COASTCAST CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
The principal objective of the Coastcast Corporation Supplemental
Executive Retirement Plan ("Plan") is to help ensure that the Company
provides a competitive level of benefits in order to attract, retain, and
motivate selected executives. The Plan is designed to provide retirement
benefits to selected employees that will help the Company meet this objective.
The Plan was originally adopted effective September 1, 1996. This
amendment and restatement of the Plan freezes benefits at the level accrued
as of December 31, 1997 for all participants as of that date, except Hans
Buehler. Mr. Buehler has voluntarily agreed to reduce his accrued benefits
under the Plan to zero and shall not continue to participate in the Plan.
With respect to Participants with an accrued benefit as of December 31, 1997
who continue to be employed on December 18, 1998, such Participants shall be
entitled (subject to satisfaction of the vesting and other conditions imposed
under the Plan) to the greater of their accrued benefit as of December 31,
1997 (the "Prior Plan Benefit") or the accrued benefit determined under this
amended and restated Plan document, which includes a revised benefit formula
and counts service prior to the Effective Date for purposes of determining
accrued benefits.
The Plan was established for the purpose of providing benefits to a select
group of management or highly compensated employees. The benefits under the
Plan are considered unfunded. Accordingly, it is intended that the Plan be
exempt from the requirements of Parts II, III, and IV of Title I of Employee
Retirement Income Security Act of 1974 ("ERISA") pursuant to Sections 201(2),
301(a)(3), and 401(a)(1) of ERISA.
ARTICLE I
DEFINITIONS
1.1 ACTUARIAL EQUIVALENT. The "Actuarial Equivalent" of two (2) forms of
benefits shall be determined using the following actuarial assumptions:
Interest rate: 7.5%
Mortality: 1983 Group Annuity Mortality Table (80% of male
factors applied on a unisex basis)
1.2 BOARD. The Board of Directors of Coastcast Corporation or its
delegate.
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1.3 CAUSE. "Cause" shall mean:
(a) Theft or embezzlement from the Company or its affiliates
(regardless of whether or not such affiliates maintain the Plan),
(b) Fraud or other acts of dishonesty in the conduct of the business
of the Company or its affiliates (regardless of whether or not such affiliates
maintain the Plan) or the fulfillment of the Participant's assigned
responsibilities thereunder,
(c) Conviction of, or plea of NOLO CONTENDERE to, any felony or any
crime involving moral turpitude,
(d) Willful and knowing action which is materially injurious to the
business or reputation of the Company or its affiliates (regardless of whether
or not such affiliates maintain the Plan).
1.4 CHANGE OF CONTROL. A "Change of Control" shall be deemed to have
occurred upon the occurrence of any one (or more) of the following events:
(a) the Company is merged or consolidated or reorganized into or with
another corporation and less than a majority of the combined voting power of the
then-outstanding securities of the surviving corporation immediately thereafter
is held in the aggregate by the holders of Voting Stock (as defined below) of
the Company immediately prior to such transaction;
(b) the Company sells or otherwise transfers all or substantially all
of its assets to any other corporation, if less than a majority of the combined
voting power of the then-outstanding voting securities of such corporation
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;
(c) as a result of, or in connection with, any cash tender or
exchange offer, merger, reorganization or other business combination, sale of
assets or contested election, or any combination of the foregoing transactions
(a "Transaction"), the individuals who were members of the Board immediately
prior to the Transaction cease to constitute a majority of the members of the
Board or of the board of directors of any successor to the Company, unless the
election or nomination for election by the holders of the Voting Stock of the
Company was approved by a vote of the majority of Board members then still in
office who were members of the Board immediately prior to the Transaction; or
(d) in connection with a transfer or assignment of Voting Stock by
the current beneficial owners of Voting Stock, the beneficial ownership of
Voting Stock changes such that less than a majority of the Voting Stock
outstanding immediately after such assignment or transfer is held by the current
beneficial owners of Voting Stock.
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For purposes of this Section, (i) "Voting Stock" shall mean shares of the
Company representing the combined voting power of the then outstanding
securities entitled to vote generally in the election of the Board, and (ii)
"beneficial ownership" and "beneficial owners" shall have the meaning ascribed
to it under Rule 13d-3 or any successor rule or regulation promulgated under the
Securities Exchange Act of 1934, as amended, as well as any person or entity
who, directly or indirectly, controls, is controlled by or under common control
with such beneficial owner.
1.5 COMPANY. Coastcast Corporation and any affiliated companies that
maintain the Plan.
1.6 DISABILITY. Any cessation of the Participant's employment with the
Company as a result of the inability of the Executive to perform his usual
duties for the Company for an extended period by reason of mental or physical
illness or injury. The Plan Administrator, in its complete and sole discretion,
shall determine a Participant's Disability after receiving competent medical
advice using nondiscriminatory standards and may rely on the determination of
any disability insurance carrier providing benefits under the terms of any
employer provided disability insurance coverage. At all times during the period
of Disability, the Participant must be receiving medical care from a competent
physician unless the Participant provides the Plan Administrator with written
proof acceptable to the Plan Administrator that additional medical care will be
of no benefit. The Plan Administrator may require that the Participant submit
to an examination on an annual basis by a competent physician or medical clinic
selected by the Plan Administrator to confirm whether a Disability is
continuing. The Plan Administrator shall have discretion to make a
determination based on the medical evidence.
1.7 EARLY RETIREMENT DATE.
(a) The first day of any month coincident with or next following the
month in which the Participant terminates employment with the Company:
(i) After becoming eligible for early retirement benefits, but
(ii) Before his Normal Retirement Date.
(b) A Participant first becomes eligible for early retirement
benefits when:
(i) He or she attains age fifty-five (55), and
(ii) He or she has at least five (5) Years of Participation.
1.8 EFFECTIVE DATE. The original effective date of the Plan was September
1, 1996. The effective date of this amended and restated Plan, is January 1,
1998, but the amendments continuing benefit accruals after December 31, 1997
only apply with respect to Participants who were Eligible Employees on or after
December 18, 1998.
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1.9 ELIGIBLE EMPLOYEE. A management level or highly compensated employee
of the Company designated by the Plan Administrator to be eligible to
participate in the Plan.
1.10 ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
1.11 ESTIMATED SECTION 401(k) PLAN BENEFIT.
(a) A Participant's annual retirement benefit payable as a straight
life annuity at Retirement, based on the Actuarial Equivalent value of the
Company Matching Contributions to the Section 401(k) Plan on his behalf
(computed in accordance with the rules of Paragraph (b) below).
(b) The amount of the Elective Deferral Contributions and Company
Matching Contributions is computed as if:
(i) The Participant had commenced participation in the
Section 401(k) Plan on the date when he first became eligible to make Elective
Deferral Contributions to that plan, and
(ii) The Participant elected the maximum Elective Deferral
Contributions and had received the maximum amount of Company Matching
Contribution that he could receive each year, based upon the amount of his
income that is taken into account under the Section 401(k) Plan for that year.
1.12 ESTIMATED SOCIAL SECURITY BENEFIT.
(a) The annual Primary Insurance Amount estimated by the
Administrative Committee to be payable to the Participant under the Social
Security Act at his Normal Retirement Date (based on the assumption that the
Participant is eligible to receive Social Security Benefits, even if his actual
Social Security retirement age is later), determined without regard to any Late
Retirement Credit under the Social Security Act.
(b) The Estimated Social Security Benefit for a Participant whose
employment is terminated before age sixty-five (65) will be calculated assuming
the Participant will:
(i) Not receive any future wages that would be treated as wages
for purposes of the federal Social Security Act, and
(ii) Begin receiving Social Security benefits at his Normal
Retirement Date under this Plan (based on the assumption that the Participant is
eligible to receive Social Security Benefits, even if his actual Social Security
retirement age is later).
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(c) The Estimated Social Security Benefit of a Participant will not
be increased by reason of any increase in the Primary Insurance Amount that
occurs following the termination of his employment.
1.13 FINAL AVERAGE SALARY.
(a) The Participant's average annual salary (excluding bonuses and
other non-regular forms of compensation) earned from the Company (before
adjustments for pre-tax contributions to Company sponsored employee benefit
Plans) during the three (3) highest salary years of the five (5) year period
ending on the December 31st next preceding the Termination of Employment Date.
Solely for purposes of determining the Prior Plan Benefit, Final Average Salary
shall be calculated based on the three (3) highest salary years of the five (5)
year period ending on December 31, 1997.
(b) In the event that the Participant has less than three (3)
calendar years of employment with the Company, his Final Average Salary shall be
the average amount of his annualized salary for the entire period.
1.14 GOOD REASON. The occurrence of any of the following circumstances
after a Change of Control, unless, in the case of events described in
Paragraphs (a), (b), (c) or (d) below, the circumstances are fully corrected
before the effective date of the Participant's notice that he is resigning from
the Company:
(a) A significant reduction or adverse change in the nature or scope
of the Participant's powers, functions, titles, position, responsibilities or
duties in respect of the Company or any affiliate, other than a change to which
the Participant consents;
(b) The Company's reduction in the Participant's annual base salary
(or any bonus provided for in a written employment agreement between the Company
and the Participant) as in effect immediately before the Change of Control or as
it may be subsequently increased;
(c) The Company's failure to pay within seven (7) days of the due
date any portion of:
(i) The Participant's current compensation, or
(ii) An installment of deferred compensation under any deferred
compensation plan of the Company;
(d) The Company's material reduction or failure to continue in effect
any compensation or benefits plan in which the Participant participated
immediately before the Change of Control that is material to his total
compensation, including but not limited to this Plan or any similar plans
adopted before the Change of Control. This provision shall not apply if an
equitable arrangement (embodied in an ongoing substitute or alternative plan)
has been made with respect to such plan;
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Notwithstanding the foregoing, no act or omission by the Company or any
Affiliate shall constitute Good Reason unless:
(i) the Participant gives the Company or the Affiliate
written notice thereof within six (6) months after he first knew or should have
known of such act or omission; and
(ii) the act or omission is not remedied within thirty (30)
days after receipt of such notice.
1.15 INDEPENDENT PLAN ADMINISTRATOR. A person, persons or entity which,
prior to a Change in Control has accepted in writing the position of Independent
Plan Administrator under the grantor trust agreement established under Section
3.7 hereof. The appointment of the Independent Plan Administrator shall be
determined under the provisions of the grantor trust agreement established under
Section 3.7 hereof. Unless otherwise designated under the grantor trust
agreement established under Section 3.7 hereof, the Independent Plan
Administrator shall be a committee, the members of which shall be Hans Buehler,
Robert Bruning and Robert Gates. After a Change in Control, the designation of
the Independent Plan Administrator may not be changed without the unanimous
written consent of the designated Independent Plan Administrator.
1.16 NORMAL RETIREMENT DATE. The Participant's sixty-fifth (65th)
birthday.
1.17 PARTICIPANT. An Eligible Employee who has become a participant in the
Plan in accordance with Section 2.1.
1.18 PLAN. Coastcast Corporation Supplemental Executive Retirement Plan.
1.19 PLAN YEAR. The fiscal year of the Plan, which shall be the period
beginning on January 1 and ending on the following December 31.
1.20 PLAN ADMINISTRATOR. The person, persons or entity appointed by the
Board pursuant to Article V to manage, administer, interpret, and construe the
Plan.
1.21 POSTPONED RETIREMENT DATE. The first day on which the Participant
terminates employment with the Company following his Normal Retirement Date.
1.22 PRIOR PLAN BENEFIT. The Participant's accrued benefit based on Years
of Participation and Final Average Salary at December 31, 1997 under the terms
of the Plan in effect prior to the Effective Date of this amended and restated
Plan. The Prior Plan Benefit is frozen as of December 31, 1997.
1.23 RETIREMENT. The termination of a Participant's employment with the
Company after he has satisfied the requirements for benefits under Section 2.2
below.
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1.24 RETIREMENT DATE. A Participant's Normal, Early, or Postponed
Retirement Date (whichever is applicable).
1.25 SECTION 401(k) PLAN. The Coastcast Corporation 401(k) Retirement Plan
as amended from time to time.
1.26 TERMINATION OF EMPLOYMENT. A participant's cessation of employment
with the Company and affiliates for any reason whatsoever, voluntary or
involuntary, including by reason of death or Disability.
1.27 YEARS OF PARTICIPATION. The number of complete Plan Years that the
Participant has been a Participant in the Plan while employed by the Company,
beginning with the first Plan Year in which the Participant commences
participation in the Plan pursuant to Section 2.1 of the Plan. A Participant
will be credited with one (1) Year of Participation for each Plan Year on or
after the Effective Date during which the Participant completes twelve (12)
months of continuous service for the Company and is a Participant in the Plan.
Participants beginning participation on the original Effective Date of the Plan
shall receive credit for a full Year of Participation for the initial short Plan
Year.
1.28 YEARS OF SERVICE.
(a) A Participant's years of service with the Company, including
periods prior to the Effective Date. Only complete Years of Service will be
taken into account under the Plan.
(b) A Participant will be credited with one (1) Year of Service for
each computation period during which the Participant completes twelve (12)
months of continuous service for the Company. A computation period shall be the
Plan Year. Except as otherwise set forth in resolutions of the Board:
(i) Each Participant will receive credit for all Years of
Service with the Company prior to commencing participation in the Plan, and
(ii) A Participant will be credited with any time while he is on
a leave of absence approved by the Company, including disability leave, up to a
maximum of two (2) additional Years of Service.
(c) Notwithstanding anything herein to the contrary, the Plan
Administrator may in its sole discretion designate in writing for any
participant the extent to which some or all service with a predecessor entity
shall be treated as service with the Company. Any such designation shall be
attached hereto as Exhibit A.
ARTICLE II
ELIGIBILITY FOR BENEFITS
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II.1 ELIGIBILITY TO PARTICIPATE.
(a) An individual shall become a Participant at the time, and on the
conditions specified by the Plan Administrator.
(b) The Participants in the Plan as of the Effective Date of this
amendment and restatement are the individuals specified in Exhibit A attached
hereto. Additional Participants may be added to Exhibit A by the Plan
Administrator without requiring an amendment to the Plan.
(c) If it is subsequently determined that the participation of any
individual in the Plan is inconsistent with the Plan being exempt from the
requirements of Parts II, III, and IV of Title I of ERISA, at the election of
the Plan Administrator, the present value of the current accrued benefit payable
to that individual shall be paid in a lump sum as soon as administratively
possible after such determination is made.
II.2 ENTITLEMENT TO BENEFITS. A Participant shall be entitled to the
accrued benefit determined pursuant to Article III hereof in accordance with the
following:
(a) NORMAL OR EARLY RETIREMENT. A Participant who has a Termination
of Employment on or after his Early Retirement Date or Normal Retirement Date
will be eligible to retire and receive accrued benefits under this Plan at his
Normal Retirement Date. Notwithstanding the foregoing, the Participant may
elect up to thirteen (13) months prior to Termination of Employment to receive
Actuarial Equivalent reduced benefits beginning on or after his Early Retirement
Date.
(b) TERMINATION OF EMPLOYMENT PRIOR TO RETIREMENT. A Participant who
has a Termination of Employment for a reason other than death or Disability
prior to attaining Early Retirement Date, but after completing five (5) Years of
Participation, shall be entitled to receive a deferred vested accrued benefit at
his Normal Retirement Date.
(c) PRE-RETIREMENT DEATH BENEFIT. In the event of the Participant's
death while still employed by the Company or an affiliate and after completing
five (5) Years of Participation, the Participant's surviving spouse, if any,
shall be entitled to receive a survivor benefit at the Participant's Normal
Retirement Date. The amount of the benefit payable to the surviving spouse
shall be determined as if:
(i) The Participant had retired on the day before his death, and
(ii) Elected to receive his benefit in the form of an Actuarial
Equivalent one hundred percent (100%) joint and survivor annuity. The value of
the joint and survivor annuity will be the Actuarial Equivalent of the accrued
benefit to which the Participant would have become entitled based on his Years
of Service at the time of his death.
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(d) POST-RETIREMENT DEATH BENEFIT. In the event of the Participant's
death after Termination of Employment, no further benefits shall be payable
under the Plan unless the Participant has elected, pursuant to Section 3.2(b),
to have benefits payable over the joint lives of the Participant and the
Participant's spouse, in which case Actuarial Equivalent benefit payments shall
continue over the life of the Participant's spouse or, if the Participant was
entitled to deferred vested benefits at the time of death, shall commence on the
Participant's Retirement Date.
(e) DISABILITY RETIREMENT BENEFIT. In the event of a Participant's
Termination of Employment on account of a Disability which is expected to
continue until Retirement Date shall be entitled to receive a deferred vested
accrued benefit at his Normal Retirement Date, without regard to Years of
Participation. For purposes of determining the Participant's accrued benefit,
the period of Disability prior to Retirement Date will be considered an approved
leave of absence for which Participant may be entitled to up to a maximum of two
(2) additional Years of Service credit.
II.3 FORFEITURE OF BENEFITS. Notwithstanding anything herein to the
contrary, the benefit payable hereunder to a Participant shall be forfeited if
he:
(a) Engages in competition with the Company (either before or after
Retirement) without the Board's prior authorization in writing. Prohibited
competition shall include the direct or indirect competition with the Company or
any affiliate in connection with any prohibited business (including, without
limitation, employment by, rendering advisory or consulting services to, service
as a partner, shareholder, director, officer, employee, agent, representative or
independent contractor of, or financial investment in a prohibited business).
For purposes of this paragraph, "prohibited business" shall mean any business
(and any branch office, location or operation thereof) which competes with any
service or product line of the Company or any Affiliate in any standard
metropolitan statistical areas in which the Company maintains current operations
or has expansion plans to which Participant is privy and any business involved
in casting golf club heads for manufacturers of premium price golf clubs;
provided, however, that a Participant may hold for investment less than one
percent (1%) of the outstanding common stock or debt securities of any
corporation which is regularly traded on a recognized stock exchange;
(b) Is discharged for Cause; or
(c) Experiences a Termination of Employment prior to completing five
(5) Years of Participation.
ARTICLE III
BENEFITS
III.1 AMOUNT OF BENEFIT. A Participant retiring in accordance with
Section 2.2 above will be eligible for a monthly retirement benefit equal to the
greater of the Prior Plan Benefit (as of December 31, 1997) or the amount
determined in Paragraph (a) below.
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(a) The annual retirement benefit payable at a Participant's Normal
Retirement Date will be two percent (2%) of his Average Earnings for each Year
of Service, not to exceed twenty-five (25). However, in no event will a
participant's years of Service in excess of twenty-five (25) be taken into
account in determining the amount of his benefit. Furthermore, the
Participant's benefit will be reduced by the following amounts:
(i) His Estimated Social Security Benefit, and
(ii) The amount of benefit payable as a straight life annuity at
Normal Retirement Date, based on the Actuarial Equivalent value of the benefit
funded by the Company payable pursuant to the terms of any tax-qualified defined
benefit pension plan sponsored by the Company for the benefit of one or more
Participants.
(b) The annual retirement benefit payable to a Participant at an
Early Retirement Date will equal the Actuarial Equivalent of his benefit
determined in accordance with Paragraph (a) above (reduced for each month that
the benefit payment begins before age sixty-five (65)).
(c) The annual retirement benefit payable to a Participant at
Postponed Retirement Date will equal his benefit determined in accordance with
Paragraph (a) above based on his Years of Service and Average Earnings as of his
Postponed Retirement Date.
III.2 FORM OF BENEFIT.
(a) The benefit determined under this Plan will be payable in the
form of a straight life annuity over the life of the Participant.
(b) In accordance with rules and procedures prescribed by the Plan
Administrator, a Participant may elect at least thirteen (13) months prior to
Termination of Employment that his benefit be paid in the form of a joint and
(100%) survivor annuity payable over the joint lives of the Participant and the
Participant's spouse that will be the Actuarial Equivalent of the amount of the
Participant's benefit calculated pursuant to Paragraph (a) above. This election
must be made prior to the year in which the benefit becomes payable.
III.3 PAYMENT OF BENEFITS.
(a) Participants are not entitled to receive a distribution of their
benefits prior to Retirement.
(b) Benefits will begin on the first day of the month coincident with
or next following the Participant's Retirement Date. Benefits will continue to
be paid on the first day of each succeeding month.
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(c) The last payment will be on the first day of the month in which
the retired Participant dies, unless the Participant has elected that his
benefit be paid in an optional form in accordance with the provisions of
Section 3.2(b) above.
III.4 PAYEES UNDER LEGAL DISABILITY.
(a) If the Plan Administrator believes that any payee is:
(i) A minor, or
(ii) Legally incapable of giving a valid receipt and discharge
for any payment due him,
the Plan Administrator may have the payment, or any part of it, made to the
person(s) or institution that it believes is caring for or supporting the payee.
(b) any payment under Paragraph (a) above shall be a payment for the
benefit of the payee and shall, to the extent thereof, be a complete discharge
of any liability under the Plan to the payee.
III.5 WITHHOLDING FOR TAXES. Any payments out of the Plan may be subject to
withholding for taxes as may be required by any applicable federal or state law.
To the extent that the benefit under this Plan is considered wages for income or
employment tax purposes during any period prior to the time benefits become
payable hereunder, the Company may withhold such taxes from the Participant's
current compensation as may be required by any applicable federal or state law.
III.6 MAILING OF PAYMENTS.
(a) All payments under the Plan shall be delivered in person or
mailed to the last address of the Participant (or, in the case of the death of
the Participant, to the last address of his surviving spouse).
(b) Each Participant shall be responsible for furnishing the Plan
Administrator with his current address.
III.7 GRANTOR TRUST. Although the Company is responsible for the payment of
all benefits under the Plan, the Company may, in its discretion, contribute
funds or assets (including insurance policies on the life of any or all
Participants) to a grantor trust for the purpose of paying benefits under this
Plan. Such trust may be irrevocable, but assets of the trust shall be subject
to the claims of creditors of the Company. To the extent any benefits provided
under the terms of the Plan are actually paid from the trust, the Company shall
have no further obligation with respect thereto. To the extent any benefits
provided under the terms of the Plan are not paid from the trust, such benefits
shall remain the obligation of and shall be paid by the Company. The
Participants shall have the status of unsecured creditors insofar as their legal
claim for
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benefits under the Plan and the Participants shall have no security interest
or preferred claim in or to the assets of any such grantor trust.
III.8 PROTECTIVE PROVISIONS. Each Participant, as a condition of
participation, shall be required to cooperate with the Company by furnishing any
and all information requested by the Plan Administrator, to facilitate payment
of benefits hereunder by taking such physical examinations as the Plan
Administrator may deem necessary and by taking such other actions as may be
requested by the Plan Administrator. If the Participant refuses to so
cooperate, the Company shall have no further obligation to the Participant under
the Plan.
ARTICLE IV
CHANGE OF CONTROL
Notwithstanding anything in this Plan to the contrary, the provisions of
this Article IV apply to those Participants whose employment is terminated
within one (1) year following a Change of Control ("Affected Participants"), as
expressly provided herein.
IV.1 ENTITLEMENT TO BENEFITS. If the employment of an Affected Participant
is terminated by the Company in an involuntary termination for any reason other
than Cause (or the Affected Participant voluntarily resigns upon 30 days written
notice for Good Reason), at any time within one (1) year following a Change of
Control and prior to becoming entitled to Retirement under Section 2.2 above, he
shall be entitled to receive a benefit at Normal Retirement Date computed
according to Section 3.1 above as if the termination of employment date was the
Affected Participant's Normal Retirement Date, provided that this shall not
increase the Participant's Years of Service. Notwithstanding the foregoing, the
Participant may elect up to thirteen (13) months prior to Termination of
Employment to receive Actuarial Equivalent reduced benefits beginning on or
after his Early Retirement Date.
IV.2 FULL VESTING. An Affected Participant entitled to benefits under
Section 4.1 shall be fully vested in his or her accrued benefit without regard
to Years of Participation, but nothing herein shall increase the amount of the
Participant's accrued benefit or accelerate the timing of payment thereof.
ARTICLE V
OPERATION AND ADMINISTRATION OF THE PLAN
V.1 PLAN ADMINISTRATOR POWERS. The Plan Administrator shall have all
powers necessary to supervise the administration of the Plan and control its
operations. In addition to any powers and authority conferred on the Plan
Administrator elsewhere in the Plan or by law, the Plan Administrator shall have
the following powers and authority:
(a) To designate agents to carry out responsibilities relating to the
Plan;
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(b) To employ such legal, actuarial, accounting, clerical, and other
assistance as it may deem appropriate in administering this Plan;
(c) To establish rules and procedures for the conduct of the Plan
Administrator's business and the administration of this Plan;
(d) To administer this Plan and to decide all questions which may
arise under this Plan. All determinations by the Plan Administrator shall be
binding upon all parties, to the maximum extent permitted by law. The Plan
Administrator shall have discretionary authority in all aspects of the
administration and interpretation of the Plan, including the interpretation and
construction of the Plan and the ability to make determinations of disputed
facts; and
(e) To perform or cause to be performed such further acts as it may
deem to be necessary or appropriate in the administration of the Plan.
V.2 COMPOSITION OF PLAN ADMINISTRATOR.
(a) The Plan Administrator (who need not be Participants or even
employees of the Company) shall be appointed by the Board of the Company and
shall continue until termination of such status in accordance with the
provisions of this Article V. In the event the Board does not designate the
Plan Administrator, the Plan Administrator shall be the Company and may the
Company's authorized officers may act on its behalf in a representative
capacity. Notwithstanding the foregoing, if the Company creates a trust as
described in Section 3.7 hereof, and, if such trust provides for an Independent
Plan Administrator, then, following a Change in Control of the Company, the
Independent Plan Administrator (or any successor Independent Plan Administrator)
under the trust shall serve as Plan Administrator of this Plan, so long as such
entity is serving as Independent Plan Administrator under the trust.
(b) The Plan Administrator or any individual member thereof may
resign at any time by giving written notice to the Board, effective as the date
stated in the notice. The Plan Administrator or any individual member thereof
may be removed by the Board at any time.
(c) In the case of a Plan Administrator or an individual member
thereof who is also an employee of the Company, his Status as Plan Administrator
shall terminate as of the effective date of the termination of his employment,
except as otherwise provided in resolutions adopted by the Board.
(d) Upon the death, resignation, or removal of the Plan
Administrator, the Board may appoint a successor. Notice of the appointment of
a successor member shall be given by the Company in writing to the other members
of the Plan Administrator.
V.3 PLAN ADMINISTRATOR PROCEDURE.
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(a) In the event the Plan Administrator is a committee of two or more
individuals, a majority of the members of the Plan Administrator shall
constitute a quorum. Any action authorized by a majority of the members:
(i) Present at any meeting, or
(ii) In writing without a meeting,
shall constitute the actions of the Plan Administrator.
(b) The Plan Administrator may designate one or more individuals as
authorized to execute any document or documents on behalf of the Plan
Administrator.
V.4 NOTICES AND COMMUNICATIONS.
(a) All communications from Participants to the Plan Administrator
shall be in writing, on forms prescribed by the Plan Administrator. These
communications shall be mailed or delivered to the office designated by the Plan
Administrator, and shall be deemed to have been given when received by the Plan
Administrator.
(b) Each communication from the Plan Administrator to a Participant
or beneficiary shall be in writing and may be delivered in person or by mail.
These communications shall be deemed to have been delivered and received by the
Participant three (3) days after the date when it is deposited in the United
States Mail with postage prepaid, addressed to the Participant or beneficiary at
his last address of record with the Plan Administrator.
V.5 REPORTING AND DISCLOSURE. The Company (and not the Plan
Administrator) shall be responsible for the reporting and disclosure of
information required to be reported or disclosed pursuant to ERISA or any other
applicable law.
V.6 CONFLICT OF INTEREST. Any member of the Plan Administrator who is
also a Participant shall not be qualified to act or vote on any matter relating
solely to himself.
V.7 INDEMNIFICATION. To the extent permitted by law, the Certificate of
Incorporation of the Company, the Bylaws of the Company and any indemnity
agreements between the Company and its directors or employees, the Company shall
indemnify each member of the Board and of the Plan Administrator, and any other
employee of the Company with duties under the Plan, against expenses (including
any amount paid in settlement) reasonably incurred by him in connection with any
claims against him by reason of his conduct in the performance of his duties
under the Plan.
ARTICLE VI
APPLICATION FOR BENEFITS
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VI .1 APPLICATION FOR BENEFITS.
(a) The Plan Administrator may require any person claiming benefits
under the Plan ("Claimant") to submit an application therefor, together with
such other documents and information as the Plan Administrator may require.
(b) Within ninety (90) days following receipt of the application and
all necessary documents and information, the Plan Administrator's authorized
delegate reviewing the claim shall furnish the Claimant with written notice of
the decision rendered with respect to the application.
(c) Should special circumstances require an extension of time for
processing the claim, written notice of the extension shall be furnished to the
Claimant prior to the expiration of the initial ninety (90) day period.
(i) The notice shall indicate the special circumstances
requiring an extension of time and the date by which a final decision is
expected to be rendered.
(ii) In no event shall the period of the extension exceed ninety
(90) days from the end of the initial ninety (90) day period.
VI.2 CONTENT OF DENIAL. In the case of a denial of the Claimant's
application, the written notice shall sat forth:
(a) The specific reasons for the denial;
(b) References to the Plan provisions upon which the denial is based;
(c) A description of any additional information or material necessary
for perfection of the application (together with an explanation of why the
material or information is necessary); and
(d) An explanation of the Plan's claims review procedure.
VI.3 APPEALS.
(a) In order to appeal the decision rendered with respect to his
application for benefits or with respect to the amount of his benefits, the
Claimant must follow the appeal procedures set forth in this Section 6.3.
(b) The appeal must be made, in writing:
(i) In the case where the claim is expressly rejected, within
sixty (60) days after the date of notice of the decision with respect to the
application, or
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(ii) In the case where the claim has neither been approved nor
denied within the applicable period provided in Section 6.1 above, within sixty
(60) days after the expiration of the period.
(c) The Claimant may request that his application be given full and
fair review by the Plan Administrator. The Claimant may review all pertinent
documents and submit issues and comments in writing in connection with the
appeal.
(d) The decision of the Plan Administrator shall be made promptly,
and not later than sixty (60) days after the Plan Administrator's receipt of a
request for review, unless special circumstances require an extension of time
for processing. In such a case, a decision shall be rendered as soon as
possible, but not later than one hundred twenty (120) days after receipt of the
request for review.
(e) The decision on review shall be in writing and shall include
specific reasons for the decision, written in a manner designed to be understood
by the Claimant, with specific references to the pertinent Plan provisions upon
which the decision is based.
VI.4 ARBITRATION. If the claim is denied after review, the Applicant shall
submit the claim to binding arbitration. Such arbitration shall be binding and
final. There shall be one arbitrator, who shall be a retired superior court or
federal court judge. The arbitrator shall have the authority only to enforce
the legal and contractual rights of the parties and shall not add to, modify,
disregard or refuse to enforce any contractual provision. The arbitrator shall
have no right, power or jurisdiction to award an Applicant any punitive or
exemplary damages of any kind. THE PARTICIPANT AND THE COMPANY ACKNOWLEDGE AND
AGREE THAT BY BECOMING A PARTICIPANT UNDER THE PLAN, THEY ARE AGREEING TO THIS
ARBITRATION PROVISION AND ARE WAIVING ALL RIGHTS TO A TRIAL BY JURY. The
prevailing party in any arbitration shall be entitled to recover his or its
reasonable attorneys' fees and costs. The provisions of California Code of
Civil Procedure Sections 1281, et seq. govern this arbitration provision.
VI.5 EXHAUSTION OF REMEDIES. No legal action for benefits under the Plan
may be brought unless and until the Claimant has exhausted his remedies under
this Article VI.
ARTICLE VII
MISCELLANEOUS MATTERS
VII.1 AMENDMENT OR TERMINATION.
(a) The Board may, at its sole discretion, amend or terminate this
Plan at any time or from time to time, in whole or in part by a duly adopted
resolution, provided that, without the consent of each existing Participant, no
amendment or termination may adversely affect that Participant's rights to
receive accrued benefits as provided in the Plan, as in effect prior to such
amendment or termination.
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(b) The termination of the Plan will result in the immediate vesting
of accrued benefits.
(c) All benefits will be payable at the time the Participant would
have otherwise been eligible to receive benefits under the provisions of this
Plan in effect before Plan termination. However, the Board may elect to
accelerate the payment of the benefits under the Plan, and to pay such benefits
in the form of lump sum distributions. Any lump sum benefits paid under this
Section 7.1(c) will be the Actuarial Equivalent of the benefits determined under
Section 3.1 above.
VII.2 EFFECT OF REORGANIZATION OR TRANSFER OF ASSETS.
(a) In the event of a consolidation, merger, sale, liquidation, or
other transfer of substantially all of the operating assets of the Company to
any other company, the ultimate successor to the business of the Company shall
automatically be deemed to have elected to continue this Plan in full force and
effect, in the same manner as if the Plan had been adopted by resolution of its
board of directors.
(b) The presumption set forth in Paragraph (a) above shall not apply
if the successor, by resolution of its board of directors, elects not to so
continue this Plan in effect. In such a case, the Plan shall terminate as of
the effective date set forth in the board resolution.
VII.3 RIGHTS OF PARTICIPANTS.
(a) Nothing contained herein will confer on any Participant the right
to be retained in the service of the Company, nor will it interfere with the
Company's right to discharge or otherwise deal with Participants without regard
to the existence of this Plan. The Company reserves the right to terminate the
employment of any Participant without any liability for any claim against the
Company except to the extent provided herein.
(b) The benefits under the Plan are unfunded. Accordingly, no
Participant shall have a preferred claim on, or a beneficial ownership interest
in, any assets of the Company prior to the time such assets are paid to him in
the form of benefits.
(c) All rights created under the Plan shall be mere unsecured
contractual rights of Participants against the Company. However, nothing in
this document shall in any way diminish any rights of a Participant to pursue
his rights as a general creditor of Company with respect to his benefits under
the Plan.
VII.4 ASSIGNMENT OF BENEFITS. To the maximum extent permitted by law, no
benefit under this Plan may be assigned or alienated. Any purported transfer,
assignment, encumbrance, or attachment thereof shall be void and of no effect.
In the event of a dispute involving any individual's right to receive the
benefit hereunder, the Plan Administrator or the Company may enter an
interpleader action. Payment of the benefit to a court of competent
jurisdiction with proper notice to the appropriate parties in dispute shall be
in full satisfaction of all claims against the
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Plan Administrator and the Company as to the Plan, and shall be equivalent to
a receipt and release pursuant to Section 7.7.
VII.5 OTHER PLANS. This Plan shall not affect the right of any Participant
to participate in and receive benefits under and in accordance with the
provisions of any other employee benefit plans which are now or hereafter
maintained by the Company, unless the terms of such other employee benefit plan
or plans specifically provide otherwise.
VII.6 INTERPRETATION.
(a) The provisions of this Plan shall in all cases be interpreted in
a manner that is consistent with this Plan satisfying the applicable
requirements of ERISA.
(b) If any provision of the Plan is held invalid or unenforceable,
its invalidity or unenforceability shall not affect any other provisions of the
Plan, and the Plan will be construed and enforced as if the provision had not
been included in it.
(c) Unless the context clearly indicates otherwise, the masculine
gender shall include the feminine, the singular shall include the plural, and
the plural shall include the singular.
(d) Article and section headings are for convenience of reference
only and shall not be deemed to be part of the substance of this instrument or
in any way to enlarge or limit the contents of any Article or Section.
VII.7 RECEIPT OR RELEASE. Any payment to a Participant in accordance with
the provisions of this Plan shall, to the extent thereof, be in full
satisfaction of all claims against the Plan Administrator and the Company, and
the Plan Administrator may require such Participant, as a condition precedent to
such payment, to execute a receipt and release to such effect.
VII.8 GOVERNING LAW. Except to the extent preempted by ERISA, this Plan
shall be construed, administered, and governed in all respects in accordance
with the laws of the State of California. If any provisions of this instrument
shall be held by a court of competent jurisdiction to be invalid or
unenforceable, the remaining provisions hereof shall continue to be fully
effective.
IN WITNESS WHEREOF, Coastcast Corporation has caused this Plan document to
be executed by its duly authorized officer as of the 18th day of December, 1998.
COASTCAST CORPORATION
By: /s/ Hans H. Buehler
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Hans Buehler, Chairman & CEO
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