EXHIBIT 10.11
AMENDED AND RESTATED
RPC, INC.
SUPPLEMENTAL RETIREMENT PLAN
EFFECTIVE JANUARY 1, 2005
TABLE OF CONTENTS
ARTICLE I PURPOSE AND EFFECTIVE DATE...................................1
1.1 BACKGROUND......................................................1
1.2 PURPOSE OF PLAN.................................................1
1.3 TAX COMPLIANCE..................................................1
1.4 CERTAIN TRANSITIONAL MATTERS....................................1
ARTICLE II DEFINITIONS.................................................2
2.1 ACCOUNT.........................................................2
2.2 ACCOUNT BALANCE.................................................2
2.3 ALLOCATION ELECTION.............................................2
2.4 ANNUAL VALUATION DATE...........................................2
2.5 BENEFICIARY.....................................................2
2.6 CHANGE IN CONTROL...............................................2
2.7 CODE............................................................2
2.8 COMMITTEE.......................................................2
2.9 COMPANY.........................................................2
2.10 COMPANY CONTRIBUTIONS..........................................3
2.11 COMPENSATION...................................................3
2.12 COMPENSATION DEFERRAL AGREEMENT................................3
2.13 DEATH BENEFIT..................................................3
2.14 DEEMED INVESTMENT..............................................3
2.15 DEFERRAL PERIOD................................................3
2.16 DEFERRED COMPENSATION ACCOUNT..................................4
2.17 DISABILITY.....................................................4
2.18 DISABILITY BENEFIT.............................................4
2.19 ELIGIBLE EMPLOYEE..............................................4
2.20 EMPLOYEE.......................................................4
2.21 ENHANCED BENEFIT CONTRIBUTION..................................4
2.22 ERISA..........................................................4
2.23 IN SERVICE DISTRIBUTION........................................4
2.24 IN SERVICE ACCOUNT.............................................4
2.25 IN SERVICE DISTRIBUTION DATE...................................5
2.26 IN SERVICE VALUATION DATE......................................5
2.27 INVESTMENT OPTION..............................................5
- ------
2.28 PARTICIPANT....................................................5
2.29 PARTICIPATING EMPLOYER.........................................5
2.30 PAYMENT SCHEDULE...............................................5
2.31 PERFORMANCE-BASED COMPENSATION.................................5
2.32 PLAN...........................................................5
2.33 PLAN ADMINISTRATOR.............................................5
2.34 PLAN YEAR......................................................6
2.35 RETIREMENT/TERMINATION BENEFIT.................................6
2.36 RETIREMENT/TERMINATION ACCOUNT.................................6
2.37 TERMINATION OF EMPLOYMENT......................................6
2.38 TERMINATION VALUATION DATE.....................................6
2.39 UNFORESEEABLE EMERGENCY........................................6
ARTICLE III ELIGIBILITY AND PARTICIPATION..............................6
3.1 ELIGIBILITY AND PARTICIPATION...................................6
3.2 DURATION........................................................7
3.3 REVOCATION OF FUTURE PARTICIPATION..............................7
3.4 NOTIFICATION....................................................7
ARTICLE IV DEFERRAL ELECTIONS, COMPANY CONTRIBUTIONS AND
PARTICIPANT ACCOUNT VALUATION...........................................7
4.1 DEFERRAL ELECTIONS..............................................7
4.2 IN SERVICE DISTRIBUTION DATE ELECTION...........................9
4.3 COMPANY CONTRIBUTIONS AND VESTING..............................10
4.4 ALLOCATION ELECTIONS AND VALUATION OF ACCOUNTS.................11
4.5 BENEFICIARY DESIGNATION........................................12
ARTICLE V DISTRIBUTIONS AND WITHDRAWALS...............................12
5.1 IN SERVICE DISTRIBUTIONS.......................................12
5.2 RETIREMENT/TERMINATION BENEFIT DISTRIBUTION....................13
5.3 INSTALLMENT PAYMENTS...........................................13
5.4 SMALL ACCOUNT BALANCE LUMP SUM PAYMENT.........................13
5.5 DISABILITY BENEFIT............................................13
5.6 DEATH BENEFIT..................................................13
5.7 UNFORESEEABLE EMERGENCY........................................13
5.8 COURT ORDER....................................................14
5.9 CHANGE IN CONTROL..............................................14
- --- ------------------
- ------
ARTICLE VI ADMINISTRATION.............................................14
6.1 PLAN ADMINISTRATION............................................14
6.2 WITHHOLDING....................................................14
6.3 INDEMNIFICATION................................................14
6.4 EXPENSES.......................................................15
6.5 DELEGATION OF AUTHORITY........................................15
6.6 BINDING DECISIONS OR ACTIONS...................................15
ARTICLE VII AMENDMENT AND TERMINATION.................................15
ARTICLE VIII INFORMAL FUNDING.........................................15
8.1 GENERAL ASSETS.................................................15
8.2 RABBI TRUST....................................................16
ARTICLE IX CLAIMS.....................................................16
9.1 CLAIM..........................................................16
9.2 FILING A CLAIM.................................................16
9.3 APPEAL OF DENIED CLAIMS........................................17
9.4 LEGAL ACTION...................................................18
9.5 DISCRETION OF COMMITTEE........................................18
ARTICLE X MISCELLANEOUS...............................................19
10.1 ADOPTION BY AFFILIATES........................................19
10.2 ANTI-ASSIGNMENT RULE..........................................19
10.3 NO LEGAL OR EQUITABLE RIGHTS OR INTEREST......................19
10.4 NO EMPLOYMENT CONTRACT........................................19
10.5 HEADINGS......................................................19
10.6 INVALID OR UNENFORCEABLE PROVISIONS...........................19
10.7 GOVERNING LAW.................................................19
ARTICLE I
PURPOSE AND EFFECTIVE DATE
1.1 Background. Effective October 1, 2002, RPC, Inc., a Delaware
----------
corporation (the "Company"), adopted the RPC Supplemental Retirement Plan (the
"Prior Plan").
1.2 Purpose of Plan. The Company hereby amends and restates the Prior
----------------
Plan, effective January 1, 2005 (the "Effective Date"). The purpose of the Plan
continues to be to provide Participants with an opportunity to defer the receipt
of a portion of their salary, bonus, and other specified cash compensation. The
Plan is not intended to meet the qualification requirements of Section 401(a) of
the Code. Rather, the Plan is intended to be treated as an unfunded arrangement
providing deferred compensation to eligible employees who are part of a select
group of management or highly compensated employees within the meaning of
Sections 201, 301 and 401 of ERISA. Thus, the Plan is intended to be exempt
from the requirements of Parts 2, 3 and 4 of Title I of ERISA as a "top hat"
plan, and to be eligible for the alternative method of compliance for reporting
and disclosure which is available for such plans.
1.3 Tax Compliance. This Plan is intended to comply with Section 409A
---------------
of the Code and any regulatory and other guidance issued under such Section. At
the time the provisions of this Plan were finalized prior to the January 1, 2005
effective date, the Department of Treasury had not yet issued regulations under
Section 409A of the Code. It is the Company's intention that any terms of this
Plan that conflict with such future guidance shall be null and void and that any
terms that are missing from the Plan which such guidance would require the Plan
contain to comply with the requirements of Section 409A of the Code shall be
incorporated into the Plan. To that end, once such guidance is issued, the
Company shall conform the Plan to the requirements of Section 409A of the Code
and the regulations and other interpretive authority promulgated thereunder.
1.4 Certain Transitional Matters. Notwithstanding anything herein or
------------------------------
otherwise to the contrary, with respect to deferrals and Company Contributions
credited to Participants' Accounts for Deferral Periods prior to the Effective
Date, and Deemed Investment earnings thereon (collectively, "Pre-Effective Date
Deferrals"):
(a) Such Pre-Effective Date Deferrals will be credited to
Participants' Retirement/Termination Accounts. No In Service Distribution
elections may be made with respect to Pre-Effective Date Deferrals; and
(b) No changes may be made to the Payment Schedule for any
Pre-Effective Date Deferrals except as set forth in Section 4.1(i). For
avoidance of doubt, an election to change a Participant's Payment Schedule for
Pre-Effective Date Deferrals to a single lump sum may not be made if, as of the
Effective Date, such Pre-Effective Date Deferrals would otherwise have been paid
in installments under the terms of the Prior Plan.
1
ARTICLE II
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
indicated, unless the context clearly indicates otherwise:
2.1 Account. "Account" means a bookkeeping account maintained by the
-------
Company to record Participant deferrals, Company Contributions, Deemed
Investments, distributions, and such other transactions, if any, that may be
required to administer the Plan. An Account shall be utilized solely as a
device to determine the value of the deferrals and Company Contributions to be
paid to a Participant under the Plan. An Account shall not constitute or be
treated as an escrow, trust fund, or any other type of funded account for
federal income tax purposes, or for purposes of ERISA, and amounts credited
thereto shall not be considered "plan assets" for federal income tax purposes,
or for purposes of ERISA.
2.2 Account Balance. "Account Balance" means, with respect to the
----------------
Deferred Compensation Account or any component Account, the total value of all
the Investment Options in which the Participant deferrals, and Company
Contributions, have been Deemed Invested as of a specific date, taking into
account the value of all distributions from the Account.
2.3 Allocation Election. "Allocation Election" means a choice by a
--------------------
Participant of one or more Investment Options in which Participant deferrals,
Company Contributions and/or existing Account Balances are Deemed Invested for
purposes of determining the value of a particular Account.
2.4 Annual Valuation Date. "Annual Valuation Date" means the
-----------------------
anniversary of the Termination Valuation Date or In Service Valuation Date
utilized to determine the amount of an annual installment payment.
2.5 Beneficiary. "Beneficiary" means the person, or persons or entity
-----------
designated by a Participant in accordance with Section 4.5 to receive the
benefits to which a Beneficiary is entitled pursuant to the provisions of the
Plan.
2.6 Change in Control. "Change in Control" means a change in the
-------------------
ownership or effective control of the Company, or the ownership of a substantial
portion of the assets of the Company, as defined by the Secretary of the
Treasury in regulations to be issued under Section 409A of the Code.
2.7 Code. "Code" means the Internal Revenue Code of 1986, as amended
----
from time to time.
2.8 Committee. "Committee" means a committee of at least two officers
---------
and/or directors of the Company appointed by the Compensation Committee of the
Board of Directors of the Company, each of whom shall serve until the earlier of
Termination of Employment or appointment of a replacement by the Compensation
Committee.
2.9 Company. "Company" means RPC, Inc., a Delaware corporation.
-------
2
2.10 Company Contributions. "Company Contributions" means Enhanced
----------------------
Benefit Contributions and discretionary Company Contributions pursuant to
Section 4.3(b) made with respect to a Participant.
2.11 Compensation. "Compensation" means, for purposes of this Plan,
------------
base salary (including any deferred salary under a Code Section 401(k) or 125
plan), bonus, commission, and such other cash or equity-based compensation
approved by the Committee as Compensation for purposes of this Plan.
2.12 Compensation Deferral Agreement. "Compensation Deferral
---------------------------------
Agreement" means the written deferral election form furnished by the Plan
Administrator, or the screen or screens on the Participant website approved by
the Plan Administrator, on which a Participant agrees to participate in the
Plan, be bound by the provisions of the Plan document, and elects: (a) the
amount and type of Compensation to be deferred beginning on the first day of the
Deferral Period; (b) any In Service Distribution Dates for that year's, or a
portion of that year's, deferrals; and (c) the Participant's Payment Schedule
election for the Retirement/Termination Benefit and for In Service
Distributions; provided, however, that the Compensation Deferral Agreement may
not change an existing Payment Schedule election except to the extent permitted
by Sections 4.1(i) and 4.2(c).
2.13 Death Benefit. "Death Benefit" means a distribution of the total
--------------
amount of the Participant's Deferred Compensation Account Balance, including any
remaining unpaid In Service Account Balances, to the Participant's Beneficiaries
in accordance with Section 5.6.
2.14 Deemed Investment. A "Deemed Investment" (or "Deemed Invested")
------------------
means the conversion of a dollar amount of deferred Compensation and Company
Contributions (if any) credited to a Participant's Deferred Compensation Account
into notional shares or units of ownership (or a fraction of such measures of
ownership, if applicable) of a security (e.g., mutual fund or other investment)
in accordance with the Investment Options selected by the Participant. The
conversion shall occur as if shares (or units) of the designated investment were
being purchased (or sold, as the case may be), at the purchase price as of the
close of business on the day on which the Deemed Investment occurs.
Notwithstanding the foregoing, at no time shall a Participant have or be deemed
to have any real or beneficial ownership in the actual security to which the
Investment Option refers, irrespective of whether such a Deemed Investment is
mirrored by an actual identical investment by the Company or a trustee acting on
behalf of the Company.
2.15 Deferral Period. "Deferral Period" means the period over which a
----------------
Participant has elected to defer a portion of his or her Compensation. Each
calendar year shall be a separate Deferral Period. However, for the initial
Deferral Period under the Plan for a newly-eligible employee, the Deferral
Period shall be the portion of the calendar year following timely submission of
a Compensation Deferral Agreement to the Plan Administrator.
3
2.16 Deferred Compensation Account. "Deferred Compensation Account"
-------------------------------
means the Account that records the total liability of the Company to the
Participant at any point in time, and includes all In Service Accounts, the
Retirement/Termination Account, and any other Account maintained by the Plan
Administrator (e.g., a separate Company Contribution Account) to administer the
Plan.
2.17 Disability. "Disability" means that a Participant is (i) unable
----------
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or be expected to last for a
continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than three months under an accident and health
plan covering employees of the Participant's employer.
2.18 Disability Benefit. "Disability Benefit" means payment by the
-------------------
Company or Participating Employer of the Participant's Deferred Compensation
Account Balance, including all unpaid In Service Account Balances, to the
Participant in accordance with the Participant's Retirement/Termination Benefit
Payment Schedule election.
2.19 Eligible Employee. "Eligible Employee" means an Employee who is
------------------
part of a select group of management or highly compensated employees of the
Company (which also includes for this purpose its subsidiaries and affiliated
companies) within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA, and who is selected by the Committee to participate in the Plan in
accordance with Section 3.1(a).
2.20 Employee. "Employee" means a full-time salaried employee of the
--------
Company or a Participating Employer.
2.21 Enhanced Benefit Contribution. "Enhanced Benefit Contribution"
-------------------------------
means an annual Company Contribution in the amounts and to the Participants set
forth on Exhibit A if certain requirements of Section 4.3(a) are satisfied.
----------
2.22 ERISA. "ERISA" means the Employee Retirement Income Security Act
-----
of 1974, as amended from time to time.
2.23 In Service Distribution. "In Service Distribution" means a
-------------------------
payment by the Company or a Participating Employer to the Participant following
a date selected by the Participant (such date, an "In Service Distribution
Date") of the amount represented by the Account Balance in the In Service
Account pertaining to that In Service Distribution Date. In Service
Distributions shall be made in accordance with a Participant's In Service
Distribution Payment Schedule election.
2.24 In Service Account. "In Service Account" means a separate Account
------------------
created when a Participant elects a new In Service Distribution Date (i.e., an
In Service Distribution Date for which an Account has not been established) with
respect to a portion, or all, of his or her deferred Compensation.
4
2.25 In Service Distribution Date. "In Service Distribution Date"
-------------------------------
means the date selected by the Participant following which the In Service
Distribution Account Balance is distributed in accordance with the Participant's
In Service Distribution Payment Schedule election.
2.26 In Service Valuation Date. "In Service Valuation Date" means the
--------------------------
last day of the calendar month in which the In Service Distribution Date falls.
2.27 Investment Option. "Investment Option" means a notional share or
------------------
unit of ownership (or a fraction of any of such measure of ownership, as
applicable) of a security representing an investment in a third-party investment
vehicle, including (without limitation) a mutual fund, stock, or other
investment approved by the Committee to be used to determine Deemed Investment
earnings (positive or negative) on amounts credited to Participants' Accounts.
No Participant shall have a real or beneficial ownership in the security or
other investment represented by the Investment Option. Notwithstanding the
foregoing, in no event may an Investment Option be common stock in the Company
or any of its affiliates.
2.28 Participant. "Participant" means an Eligible Employee who: (a)
-----------
has elected to defer Compensation in accordance with the Plan in any Plan Year;
(b) has received (or is entitled to receive) a Company Contribution; or (c) has
an Account Balance in his or her Deferred Compensation Account greater than
zero. A Participant's continued participation in the Plan shall be governed by
Section 3.2 of the Plan.
2.29 Participating Employer. "Participating Employer" means a
-----------------------
subsidiary or affiliate of the Company that has adopted the Plan for Eligible
Employees that it employs and that assumes responsibility for payment of
benefits to its Participant Employees in accordance with the terms of the Plan.
As of the date hereof, Participating Employers include CUDD Pressure Control,
Inc., Patterson Services, Inc., and Bronco Oilfield Services, Inc. "Employers"
shall mean the Company and all Participating Employers when the context so
requires.
2.30 Payment Schedule. "Payment Schedule" means the method and timing
-----------------
of a distribution (e.g., single lump sum or installment payments) as elected by
the Participant for distributions that permit Payment Schedule elections under
the Plan.
2.31 Performance-Based Compensation. "Performance-Based Compensation"
-------------------------------
means Compensation that is based on services performed over a period of at least
12 months and is contingent on the satisfaction of pre-established performance
criteria that is not readily ascertainable at the time of the Participant's
deferral election, as determined by the Committee in accordance with Section
409A of the Code and the regulation and other guidance issued thereunder.
2.32 Plan. "Plan" means the RPC, Inc. Supplemental Retirement Plan, as
----
documented herein and as may be amended from time to time hereafter.
2.33 Plan Administrator. "Plan Administrator" means one or more
-------------------
persons appointed by the Committee who are responsible for such record keeping
and other administrative responsibilities assigned to the Plan Administrator
pursuant to the Plan and/or delegated to it by the Committee.
5
2.34 Plan Year. "Plan Year" means January 1 through December 31.
----------
2.35 Retirement/Termination Benefit. "Retirement/Termination Benefit"
-------------------------------
means a payment by the Company or Participating Employer of the Participant's
Deferred Compensation Account Balance, including all unpaid In Service Account
balances, to the Participant in accordance with the Participant's Payment
Schedule election or as otherwise specified in Article V of the Plan.
2.36 Retirement/Termination Account. "Retirement/Termination Account"
-------------------------------
means that portion of the Deferred Compensation Account not allocated to In
Service Accounts.
2.37 Termination of Employment. "Termination of Employment" means
---------------------------
separation from service with the Company (or the Participating Employer that is
the Participant's employer), for any reason. The foregoing notwithstanding, if
a Participant transfers to the employ of a Participating Employer (or the
Company) after terminating employment with another Participating Employer (or
the Company), no Termination of Employment shall be deemed to have occurred for
purposes of this Plan.
2.38 Termination Valuation Date. "Termination Valuation Date" means
----------------------------
the last day of the calendar month in which Termination of Employment occurs;
provided, however, if a Participant is a "specified employee" for purposes of
Section 409A(a)(2)(B)(i) of the Code on the date that Termination of Employment
occurs, then the Termination Valuation Date shall mean the last day of the month
that is at least six months after the date that Termination of Employment
occurs.
2.39 Unforeseeable Emergency. "Unforeseeable Emergency" means a severe
-----------------------
financial hardship to the Participant resulting from an illness or accident of
the Participant, the Participant's spouse, or a dependent (as defined in Section
152(a) of the Code) of the Participant, loss of the Participant's property due
to casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant. The term
"Unforeseeable Emergency" shall be interpreted for purposes of this Plan in a
manner consistent with Section 409A(a)(2)(B)(ii) of the Code and the regulations
and other guidance issued thereunder.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility and Participation.
-------------------------------
(a) Eligibility. The Committee shall determine, in its sole
-----------
discretion, those Employees who will be eligible to participate in the Plan.
(b) Participation. An Eligible Employee may elect to participate in
-------------
this Plan with respect to any Deferral Period by submitting a Compensation
Deferral Agreement to the Plan Administrator, prior to the date established by
the Plan Administrator, in the calendar year immediately prior to the Deferral
Period.
6
(c) Partial Year Participation. If an Employee first becomes eligible
---------------------------
to participate during a calendar year, a Compensation Deferral Agreement must be
submitted to the Plan Administrator no later than 30 days following the date on
which the Employee was notified of the Employee's eligibility to participate in
accordance with Section 3.4. Such Compensation Deferral Agreement shall be
effective only with regard to Compensation for services to be performed
subsequent to the receipt of the Compensation Deferral Agreement by the Plan
Administrator.
3.2 Duration. Once an Employee becomes a Participant, the Employee shall
---------
continue to be a Participant so long as he or she is entitled to receive
benefits hereunder, notwithstanding any subsequent Termination of Employment;
provided, however, that a Participant who has experienced a Termination of
Employment shall not be allowed to make future deferrals or to have Company
Contributions credited to his or her Deferred Compensation Account under this
Plan.
3.3 Revocation of Future Participation. Notwithstanding the provisions of
-----------------------------------
Section 3.2, but subject to Section 409A of the Code and the regulation and
other guidance issued thereunder, the Committee may revoke such Participant's
eligibility to make future deferrals under this Plan. Such revocation will not
affect in any manner a Participant's Deferred Compensation Account or other
terms of this Plan.
3.4 Notification. Each Employee who becomes eligible to participate in this
------------
Plan shall be notified by the Plan Administrator of his or her eligibility to
participate and be given an opportunity to make deferral elections hereunder.
ARTICLE IV
DEFERRAL ELECTIONS, COMPANY CONTRIBUTIONS AND PARTICIPANT ACCOUNT VALUATION
4.1 Deferral Elections.
------------------
(a) Deferral elections shall be made by completing and submitting to
the Plan Administrator the Compensation Deferral Agreement (or by completing and
electronically submitting the deferral election screen on the Participant
website, when available). Deferral elections pertaining to base salary shall be
made during a single annual enrollment period which shall end prior to the end
of the calendar year preceding the year in which the services will be performed
or in such other time and manner that complies with Section 409A of the Code and
any regulatory or other guidance issued thereunder. Deferral elections for
Performance-Based Compensation shall be made no later than six months prior to
the end of the period over which performance is evaluated in order to determine
the amount of the bonus. Unless otherwise determined by the Committee in its
sole discretion in accordance with Section 409A of the Code and published
guidance relating thereto, deferral elections pertaining to other Compensation
shall be made no later than the close of the calendar year prior to the
beginning of the period during which services are performed for which the
Compensation is paid.
7
(b) Notwithstanding the foregoing, a newly Eligible Employee who
becomes eligible to be a Participant during any Plan Year may, in the initial
year of eligibility only, make deferral elections with respect to Compensation
which will be earned during the balance of the Deferral Period in accordance
with Section 3.1(c).
(c) Deferral elections shall be effective for an entire Deferral
Period, and shall remain in effect from Deferral Period to Deferral Period until
modified or revoked by the Participant by delivering a Compensation Deferral
Agreement to the Plan Administrator (or by making the appropriate elections on
the Participant website screen) prior to the end of an annual enrollment period.
Such modification or revocation shall become effective on the first day of the
Deferral Period following the calendar year in which the modification or
revocation was made.
(d) A deferral election shall designate the amount of Compensation to
be deferred during the Deferral Period either in a dollar amount or in whole
percentages. Separate deferral elections may be made for each component of
Compensation. Deferral elections will be subject to the following limitations:
(i) for base salary, the maximum deferral percentage will be 25%, (ii) for
bonuses and commissions, the maximum deferral percentage will be 50%, and (iii)
the maximum dollar amount of permissible deferrals in any Plan Year for the
combination of base salary, bonus and commission deferrals will be $500,000.
(e) The foregoing paragraphs under this Section 4.1 notwithstanding, if
a Participant's deferral election results in insufficient non-deferred
Compensation from which to withhold taxes and/or welfare benefit plan
obligations in accordance with applicable law and welfare plan participation
agreements, the deferral election shall be reduced as necessary to allow the
Company to satisfy tax withholding requirements and welfare benefit plan
obligations incurred by the Participant.
(f) All deferrals will be credited to the appropriate Account and
Deemed Investments will be made in the investments represented by the Investment
Options selected by the Participant as of the close of business on the Deferral
Date, or as otherwise provided by the Committee. For base salary, the "Deferral
Date" means each payday during the Deferral Period. For other components of
Compensation (e.g., commissions or bonuses), the "Deferral Date" means the date
such component of Compensation is (or would otherwise be) paid.
(g) A deferral election will be irrevocable except that the Committee
may permit a Participant to reduce the amount deferred, or waive the remainder
of the deferral election, upon a finding, in its sole and absolute discretion,
that the Participant has suffered an Unforeseeable Emergency. If the Committee
grants the application, the Participant will not be allowed to make a new
deferral election for the remainder of the Deferral Period in which the
reduction or waiver of the deferral election occurs and the following Deferral
Period. Any resumption of the Participant's deferrals will be made only at the
election of the Participant in accordance with this Article IV.
(h) The Compensation Deferral Agreement (or Participant website screen)
shall indicate the Participant's election of a Payment Schedule for a
Participant's Retirement/Termination Benefit. Permissible Payment Schedule
elections for the Retirement/Termination Benefit include: (i) a portion, or all,
in a single lump sum payable as soon as administratively practicable following
the Termination Valuation Date; and (ii) the balance (if any) in up to 10 annual
installment payments payable at the time described in Section
8
5.3. An election of a Retirement/Termination Benefit Payment Schedule shall
pertain to the entire Retirement/Termination Benefit Account Balance; provided,
however, that the Compensation Deferral Agreement may not change an existing
Payment Schedule election except to the extent permitted by Section 4.1(i)
below. To the extent permitted by Section 409A of the Code and regulations and
other guidance issued thereunder, a Participant may elect a separate Payment
Schedule for Retirement/Termination Benefits following a Change in Control.
(i) No changes may be made to a Participant's Retirement/Termination
Payment Schedule election unless: (i) such election is made at least 13 months
prior to the Participant's date of Termination of Employment; (ii) such change
does not accelerate previously elected payments (e.g., does not shorten
installment periods or change installment payments to lump sum payments), (iii)
the first payment with respect to which such election is made is not less than
five years from the date such payment would otherwise have been made and (iv)
such change fully complies with Section 409A of the Code and the regulations and
other guidance issued thereunder. Any change to a Participant's
Retirement/Termination Payment Schedule election shall be made on a Compensation
Deferral Agreement or by following such procedures regarding changes to Payment
Schedule elections on the Participant website, when available.
(j) Any Payment Schedule election made within 13 months of Termination
of Employment shall be null and void, and the most recent payment schedule
election which is dated at least 13 months prior to Termination of Employment
shall be deemed to be in effect. In the event a Participant has not made a
valid Payment Schedule election, the Retirement/Termination Benefit will be paid
in a single lump sum.
(k) Amounts credited to a Participant's Retirement/Termination Account
shall at all times remain credited to the Participant's Retirement/Termination
Account until distributed to the Participant or the Participant's Beneficiary.
Amounts credited to a Participant's Retirement/Termination Account may not be
credited or reallocated to an In Service Account established on behalf of the
Participant.
4.2 In Service Distribution Date Election.
-----------------------------------------
(a) A Participant will be allowed to elect on his or her Compensation
Deferral Agreement (or Participant website screen) one or more In Service
Distribution Dates relating to all or a portion of the deferred Compensation for
that Deferral Period. The Plan Administrator shall create an In Service Account
for each separate In Service Distribution Date. If an In Service Account has
already been established for the In Service Distribution Date selected by the
Participant, such portion of deferred Compensation shall be credited to the
existing In Service Account.
(b) A Participant may maintain no more than three In Service Accounts at any
time.
(c) No change (including a cancellation) may be made to an In Service
Distribution Date unless: (i) the date the change of election is submitted to
the Plan Administrator is at least 13 months prior to the In Service
Distribution Date intended to be changed; (ii) the resulting distribution
commencement date is no less than five full years from the In Service
Distribution Date being extended; and (iii) such In Service Distribution Date
9
change (or cancellation) otherwise complies in all respects with Section 409A of
the Code and the regulations and other guidance issued thereunder.
Notwithstanding anything herein or otherwise to the contrary, In Service
Distribution Dates may not be accelerated. An change (including a cancellation)
to an In Service Distribution Date must be made by submitting a new Compensation
Deferral Agreement or such other form as may be provided for by the Plan
Administrator for In Service Distribution Date changes (or by completing and
electronically submitting the appropriate screen on the Participant website,
when available). If a new In Service Distribution Date corresponds to an
existing In Service Distribution Date, the In Service Accounts will be combined
into one In Service Account. A change or cancellation to an In Service
Distribution Date must be made with respect to the entire In Service Account
Balance. A change or cancellation will not affect other In Service
Distributions or the Participant's ability to make new In Service Distribution
elections with respect to future deferrals as long as the total number of In
Service Distribution Dates does not exceed three.
(d) Any portion of a deferral not credited to an In Service
Distribution Account will be credited to the Retirement/Termination Account.
(e) The Compensation Deferral Agreement shall also indicate the
Participant's Payment Schedule election for each In Service Distribution Date.
Permissible Payment Schedules for In Service Distributions are: (i) a single
lump sum or (ii) from two to five annual installment payments.
(f) No changes may be made to a Participant's In Service Payment
Schedule election unless: (i) such election is made at least 13 months prior to
the In Service Distribution Date being changed; (ii) such change does not
accelerate previously elected payments (e.g., does not shorten installment
periods or change installment payments to lump sum payments), (iii) the first
payment with respect to which such election is made is not less than five years
from the date such payment would otherwise have been made and (iv) such change
fully complies with Section 409A of the Code and the regulations and other
guidance issued thereunder. Any change to a Participant's In Service Payment
Schedule election shall be made on a Compensation Deferral Agreement or by
following such procedures regarding changes to Payment Schedule elections on the
Participant website, when available.
4.3 Company Contributions and Vesting.
------------------------------------
(a) Enhanced Benefit Contribution. Certain Participants, identified on
-----------------------------
Exhibit A, are eligible for the Enhanced Benefit Contribution. Beginning with
- ----------
the 2005 Plan Year and each Plan Year thereafter through and including the 2008
Plan Year, the Company may, in its sole discretion, credit to an eligible
Participant's Retirement/Termination Account the amount indicated on Exhibit A
---------
provided that such Participant is still employed by his or her Employer through
the last day of the applicable Plan Year. Such contribution (if made) will be
effective on the last day of the applicable Plan Year. If a Participant who is
eligible for the Enhanced Benefit Contribution terminates employment before the
last day of any Plan Year, the Enhanced Benefit Contribution amount shall be
zero. Enhanced Benefit Contributions are 100% vested.
(b) Company Discretionary Contributions. In addition to the Enhanced
-------------------------------------
Benefit Contribution in Section 4.3(a) above, the Company may, in its sole and
absolute discretion, make discretionary Company Contributions to one or more
Participants.
10
Discretionary Company Contributions shall be credited at such times and in such
amounts as the Company in its sole discretion shall determine to an eligible
Participant's Retirement/Termination Account. The Company shall have no
obligation to make discretionary Company Contributions pursuant to this Section
4.3(b). Each discretionary Company Contribution, and the Deemed Investment
earnings thereon, shall be subject to a vesting schedule established by the
Company and communicated by the Plan Administrator to the Participant. If no
vesting schedule has been communicated to a Participant with respect to a
discretionary Company Contribution pursuant to this Section 4.3(b), such
discretionary Company Contribution shall vest at the end of the Plan Year
following the Plan Year during which the discretionary Company Contribution was
credited to the Participant's Account.
(c) Deemed Investments of Company Contributions shall be made in the
same manner as for deferrals as described in Section 4.4 on the date the Company
Contribution is credited to the Participant's Account.
4.4 Allocation Elections and Valuation of Accounts.
---------------------------------------------------
(a) A Participant shall be allowed to select one or more Investment
Options from a list provided by the Committee. The initial election shall be
made on the Allocation Election form approved by the Committee (or Allocation
Election screen on the Participant website approved by the Committee) and shall
specify the allocations among the Investment Options selected. A Participant may
make different Allocation Elections for each Account. A Participant's Accounts
shall be valued as the sum of the value of all Deemed Investments minus any
withdrawals or distributions from the relevant Account. Investment Options shall
be utilized to determine the value of an Account. Elections of Investment
Options do not represent actual ownership of, nor ownership rights in or to, the
securities or other investments to which the Investment Options refer, nor is
the Company in any way bound or directed to make actual investments
corresponding to Deemed Investments.
(b) The Committee, in its sole discretion, shall be permitted to add or
remove Investment Options provided that any such additions or removals of
Investment Options shall not be effective with respect to any period prior to
the effective date of such change. Any unallocated portion of an Account or any
unallocated portion of new deferrals shall be Deemed Invested in an Investment
Option referring to a money market based fund.
(c) A Participant may make a new Allocation Election with respect to future
deferrals or current Account Balances (or both), provided that such new
allocations shall be in increments of 1% and apply to the entire Account
Balance. Subject to restrictions on the timing and number of permitted changes
to Allocation Elections within certain time periods established by the
Committee, new Allocation Elections may be made on any business day, and will
become effective on the first business following the date the new Allocation
Election is requested by the Participant.
(d) Notwithstanding anything herein to the contrary, the Company shall have
the sole and exclusive authority to invest any or all amounts set aside to pay
benefits hereunder, regardless of any Allocation Elections by any Participant. A
Participant's Allocation Election shall be used solely for purposes of
determining the value of his or her Accounts and the Company's obligation to the
Participant pursuant to this Plan.
11
4.5 Beneficiary Designation.
------------------------
(a) Subject to Section 4.5(c), each Participant shall have the right,
at any time, to designate one or more persons or an entity as Beneficiary (both
primary as well as secondary) to whom benefits under this Plan are to be paid in
the event of such Participant's death prior to complete distribution of the
Participant's Accounts. Each beneficiary designation shall be in a written form
prescribed by the Plan Administrator and shall be effective only when filed with
the Plan Administrator during the Participant's lifetime.
(b) Subject to Section 4.5(c), any Beneficiary designation, other than
a Participant's spouse, may be changed by the Participant without the consent of
the previously named Beneficiary by filing a new Beneficiary designation form
with the Plan Administrator. The filing of a new properly-completed Beneficiary
designation shall cancel all Beneficiary designations previously made.
(c) If the Participant resides in a community property state, any
Beneficiary designation shall be valid or effective only as permitted under
applicable law.
(d) If a Participant fails to designate a Beneficiary in the manner
provided in Section 4.5(a) above and subject to Section 4.5(c), if the
Beneficiary designation is void, or if the Beneficiary designated by a deceased
Participant dies before the Participant or before complete distribution of the
Participant's Accounts, the Participant's Beneficiary shall be the person in the
first of the following classes in which there is a survivor:
(i) The Participant's spouse;
(ii) The Participant's children in equal shares, except that if any of
the children predeceases the Participant but leaves issue surviving, then such
issue shall take, by right of representation, the share the parent would have
taken if then living; or
(iii) The Participant's estate.
ARTICLE V
DISTRIBUTIONS AND WITHDRAWALS
5.1 In Service Distributions. Subject to the requirements of Section
--------------------------
409A of the Code:
(a) Each In Service Distribution shall be paid in accordance with the
Payment Schedule election made with respect thereto, beginning as soon as
administratively practicable following the In Service Distribution Valuation
Date. In the event a Participant has elected installment payments for an In
Service Distribution, the installment payments shall be determined as set forth
in Section 5.4.
12
(b) Notwithstanding a Participant's election to receive an In Service
Distribution, all In Service Account Balances shall be distributable as part of
a Retirement/Termination, Disability, or Death Benefit if the triggering date
for such Benefit occurs prior to the completion of payments elected in
connection with any In Service Distribution Date.
5.2 Retirement/Termination Benefit Distribution. Subject to the
---------------------------------------------
requirements of Section 409A of the Code, in the event that a Participant
experiences a Termination of Employment, the Retirement/Termination Benefit will
be paid to such Participant in accordance with such Participant's
Retirement/Termination Benefit Payment Schedule election. The
Retirement/Termination Benefit will be paid (or the first payment will commence)
by the Company or the Participating Employer as soon as administratively
practicable following the Termination Valuation Date.
5.3 Installment Payments. If the Participant has elected installment
---------------------
payments for his or her Participant's Retirement/Termination Benefit
distribution or an In Service Distribution, annual cash payments will be made
beginning as soon as administratively practicable following the applicable
Valuation Date (Termination or In Service) or, in the event of a partial lump
sum election, following the first anniversary of the partial lump sum payment
made following Termination of Employment. Such payments shall continue annually
on or about the anniversary of the previous installment payment until the number
of installment payments elected has been paid. The installment payment amount
shall be determined annually as the result of a calculation, performed on the
Annual Valuation Date, where (i) is divided by (ii):
(i) equals the value of the applicable Account on the Annual Valuation
Date; and
(ii) equals the remaining number of installment payments.
5.4 Small Account Balance Lump Sum Payment. Anything to the contrary
----------------------------------------
in this Plan notwithstanding, in the event that a Participant's Account Balance
is less than $10,000 on the initial Termination or In Service Distribution
Valuation Date, the In Service Distribution or Retirement/Termination Benefit,
as applicable, shall be paid in a single lump sum and any form of payment
election to the contrary shall be null and void.
5.5 Disability Benefit. In the event a Participant suffers a
-------------------
Disability, the Disability Benefit shall be paid by the Company or Participating
Employer as soon as administratively practicable following the Valuation Date,
which, for purposes of the Disability Benefit, shall be the end of the month in
which the onset of Disability occurs.
5.6 Death Benefit. In the event of a Participant's death either before
-------------
Termination of Employment or before complete distribution of any In Service
Distribution or Retirement/Termination Benefit, such Participant's Beneficiary
shall be paid a Death Benefit in the amount of the remaining Deferred
Compensation Account Balance in a single lump sum as soon as practicable
following the end of the month in which the Participant's death occurred. The
Valuation Date for purposes of determining the Death Benefit shall be the last
day of the month in which the Participant's death occurs.
13
5.7 Unforeseeable Emergency. A Participant may request, in writing to
------------------------
the Plan Administrator, a withdrawal from his or her Deferred Compensation
Account if the Participant experiences an Unforeseeable Emergency. The Plan
Administrator, in its sole discretion, shall determine whether a Participant has
experienced an Unforeseeable Emergency. Withdrawals of amounts because of an
Unforeseeable Emergency are limited to the extent reasonably needed to satisfy
the emergency need, which cannot be met with other resources of the Participant.
The amount of such Unforeseeable Emergency withdrawal shall be subtracted first
from the vested portion of the Participant's Retirement/Termination Account
until depleted and then from the In Service Distribution Accounts (if any)
beginning with the most distant distribution commencement date. Values for
purposes of administering this Section shall be determined on the date the Plan
Administrator approves the amount of the Unforeseeable Emergency withdrawal, or
such other date determined by the Plan Administrator.
5.8 Court Order. Subject to restrictions imposed by Section 409A of
------------
the Code, if any, in the event a court of competent jurisdiction orders a
distribution of part, or all, of a Participant's Account pursuant to a valid
judgment or court order, the Plan Administrator shall make a distribution to the
Participant or other recipient named in the judgment or court order in the
amount necessary to satisfy the judgment or court order.
5.9 Change in Control. To the extent permitted by regulations or other
-----------------
guidance issued by the Secretary of the Treasury under Section 409A of the Code,
distributions payable as a result of Termination of Employment following a
Change in Control shall be paid pursuant to the Payment Schedule selected by the
Participant in his or her Compensation Deferral Agreement. For
Retirement/Termination Benefit distributions following a Change in Control, a
Participant may select any of the Payment Schedules available under Section
4.1(h). This Section 5.9 will not apply until such regulations (or other
applicable guidance) are effective.
ARTICLE VI
ADMINISTRATION
6.1 Plan Administration. This Plan shall be administered by the
--------------------
Committee, which shall have discretionary authority to make, amend, interpret
and enforce all appropriate rules and regulations for the administration of this
Plan and to utilize its discretion to decide or resolve any and all questions,
including but not limited to eligibility for benefits and interpretations of
this Plan and its terms, as may arise in connection with the Plan. Claims for
benefits shall be filed with the Committee and resolved in accordance with the
claims procedures in Article IX.
6.2 Withholding. The Employer shall have the right to withhold from any
-----------
payment made under the Plan (or any amount deferred under the Plan) any required
by law to be withheld in respect of such payment (or deferral). In addition, the
Employer shall also have the right to withhold from other Compensation or other
amounts payable to the Participant, or require payment from the Participant, for
any taxes required by law to be withheld in respect of payments and/or deferrals
under the Plan.
6.3 Indemnification. The Company shall indemnify and hold harmless each
-------------
employee, officer, director, agent or organization, to whom or to which duties,
responsibilities, and authority with respect to administration of the Plan are
delegated, against all claims, liabilities, fines and penalties, and all
expenses reasonably incurred by or imposed upon him, her or it (including but
not limited to reasonable attorney fees) which arise as a result of his, her or
14
its actions or failure to act in connection with the operation and
administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by
liability insurance purchased or paid for by the Company. Notwithstanding the
foregoing, the Company shall not indemnify any person or organization if his,
her or its actions or failure to act are due to gross negligence or willful
misconduct or for any such amount incurred through any settlement or compromise
of any action unless the Company consents in writing to such settlement or
compromise.
6.4 Expenses. The expenses of administering the Plan shall be paid by the
--------
Company.
6.5 Delegation of Authority. In the administration of this Plan, the
------------------------
Committee may, from time to time, employ agents (including the Plan
Administrator) and delegate to them such administrative duties as it sees fit,
and may from time to time consult with legal counsel who may be legal counsel to
the Company. To the extent that such responsibilities have been delegated to the
Plan Administrator by the Committee, the Plan Administrator may also employ
agents and delegate to them such administrative duties as it sees fit, and may
from time to time consult with legal counsel who may be legal counsel to the
Company.
6.6 Binding Decisions or Actions. The decision or action of the Committee
-----------------------------
in respect of any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations thereunder shall be final and conclusive and binding upon all
persons having any interest in the Plan.
ARTICLE VII
AMENDMENT AND TERMINATION
The Plan is intended to be permanent, but the Committee may at any time
modify, amend, or terminate the Plan, provided that such modification, amendment
or termination shall not cancel, reduce, or otherwise adversely affect the
amount of benefits of any Participant accrued (and any form of payment elected)
as of the date of any such modification, amendment, or termination, without the
consent of the Participant.
ARTICLE VIII
INFORMAL FUNDING
8.1 General Assets. All benefits in respect of a Participant under
---------------
this Plan shall be paid directly from the general funds of the Employer, or a
"rabbi trust" created by the Company and funded by the Employers for the purpose
of informally funding the Plan, and other than such rabbi trust, if created, no
special or separate fund shall be established and no other segregation of assets
shall be made to assure payment. No Participant, spouse or Beneficiary shall
have any right, title or interest whatever in or to any investments which an
Employer may make to aid the Employer in meeting its obligation hereunder.
Nothing contained in this Plan, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind, or a fiduciary
relationship, between the Employer or any if its subsidiaries or affiliated
companies and any Employee, Participant, spouse of an Employee or Participant,
or Beneficiary. To the extent that any person acquires a right to receive
payments from the Employer hereunder, such rights are no greater than the right
of an unsecured general creditor of the Employer.
15
8.2 Rabbi Trust. The Company may, at its sole discretion, establish a
------------
grantor trust, commonly known as a "rabbi trust", as a vehicle for accumulating
the assets needed to pay the promised benefit, but the Company shall be under no
obligation to establish any such trust or any other informal funding vehicle.
Any trust established hereunder shall comply with the applicable requirements of
Section 409A of the Code and the regulations and other guidance issued
thereunder.
ARTICLE IX
CLAIMS
9.1 Claim. The Committee shall establish rules and procedures to be
-----
followed by Participants and Beneficiaries in (a) filing claims for benefits,
and (b) furnishing and verifying proofs necessary to establish the right to
benefits in accordance with this Plan, consistent with the remainder of this
Article IX. Such rules and regulations shall require that claims and proofs be
made in writing and directed by the Committee.
9.2 Filing a Claim. Any controversy or claim arising out of or relating to
--------------
the Plan shall be filed with the Committee which shall make all determinations
concerning such claim. Any decision by the Committee denying such claim shall be
in writing and shall be delivered to the Participant or Beneficiary filing the
claim ("Claimant").
(a) In General. Notice of a denial of benefits (other than Disability
-----------
benefits) will be provided within 90 days of the Committee's receipt of the
Claimant's claim for benefits. If the Committee determines that it needs
additional time to review the claim, the Committee will provide the Claimant
with a notice of the extension before the end of the initial 90-day period. The
extension will not be more than 90 days from the end of the initial 90-day
period and the notice of extension will explain the special circumstances that
require the extension and the date by which the Committee expects to make a
decision.
(b) Disability Benefits. Notice of denial of Disability benefits will be
--------------------
provided within 45 days of the Committee's receipt of the Claimant's claim for
Disability benefits. If the Committee determines that it needs additional time
to review the Disability claim, the Committee will provide the Claimant with a
notice of the extension before the end of the initial 45-day period. If the
Committee determines that a decision cannot be made within the first extension
period due to matters beyond the control of the Committee, the time period for
making a determination may be further extended for an additional 30 days. If
such an additional extension is necessary, the Committee shall notify the
Claimant prior to the expiration of the initial 30-day extension. Any notice of
extension shall indicate the circumstances necessitating the extension of time,
the date by which the Committee expects to furnish a notice of decision, the
specific standards on which such entitlement to a benefit is based, the
unresolved issues that prevent a decision on the claim and any additional
information needed to resolve those issues. A Claimant will be provided a
minimum of 45 days to submit any necessary additional information to the
Committee. In the event that a 30-day extension is necessary due to a Claimant's
failure to submit information necessary to decide a claim, the period for
furnishing a notice of decision shall be tolled from the date on which the
notice of the extension is sent to the Claimant until the earlier of the date
the Claimant responds to the request for additional information or the response
deadline.
16
(c) Contents of Notice. If a claim for benefits is completely or
--------------------
partially denied, notice of such denial shall be in writing and shall set forth
the reasons for denial in plain language. The notice shall (i) cite the
pertinent provisions of the Plan document and (ii) explain, where appropriate,
how the Claimant can perfect the claim, including a description of any
additional material or information necessary to complete the claim and why such
material or information is necessary. The claim denial also shall include an
explanation of the claims review procedures and the time limits applicable to
such procedures, including a statement of the Claimant's right to bring a civil
action under Section 502(a) of ERISA following an adverse decision on review.
In the case of a complete or partial denial of a Disability benefit claim, the
notice shall provide a statement that the Committee will provide to the
Claimant, upon request and free of charge, a copy of any internal rule,
guideline, protocol, or other similar criterion that was relied upon in making
the decision.
9.3 Appeal of Denied Claims. A Claimant whose claim has been
--------------------------
completely or partially denied shall be entitled to appeal the claim denial by
filing a written appeal with the Committee. A Claimant who timely requests a
review of the denied claim (or his or her authorized representative) may review,
upon request and free of charge, copies of all documents, records and other
information relevant to the denial and may submit written comments, documents,
records and other information relevant to the claim to the Committee. All
written comments, documents, records, and other information shall be considered
"relevant" if the information (i) was relied upon in making a benefits
determination, (ii) was submitted, considered or generated in the course of
making a benefits decision regardless of whether it was relied upon to make the
decision, or (iii) demonstrates compliance with administrative processes and
safeguards established for making benefit decisions. The Committee may, in its
sole discretion and if it deems appropriate or necessary, decide to hold a
hearing with respect to the claim appeal.
(a) In General. Appeal of a denied benefits claim (other than a claim
-----------
relating to Disability Benefits) must be filed in writing with the Committee no
later than sixty (60) days after receipt of the written notification of such
claim denial. The Committee shall make its decision regarding the merits of the
denied claim within 60 days following receipt of the appeal (or within 120 days
after such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim). If an extension of time
for reviewing the appeal is required because of special circumstances, written
notice of the extension shall be furnished to the Claimant prior to the
commencement of the extension. The notice will indicate the special
circumstances requiring the extension of time and the date by which the
Committee expects to render the determination on review. The review will take
into account comments, documents, records and other information submitted by the
Claimant relating to the claim without regard to whether such information was
submitted or considered in the initial benefit determination.
(b) Disability Benefits. Appeal of a denied claim relating to Disability
--------------------
Benefits must be filed in writing with the Committee no later than 180 days
after receipt of the written notification of such claim denial. The review shall
be conducted by the Committee (exclusive of the person who made the initial
adverse decision or such person's subordinate). In
17
reviewing the appeal, the Committee shall (i) not afford deference to the
initial denial of the claim, (ii) consult a medical professional who has
appropriate training and experience in the field of medicine relating to the
Claimant's disability and who was neither consulted as part of the initial
denial nor is the subordinate of such individual and (ii) identify the medical
or vocational experts whose advice was obtained with respect to the initial
benefit denial, without regard to whether the advice was relied upon in making
the decision. The Committee shall make its decision regarding the merits of the
denied claim within 45 days following receipt of the appeal (or within 90 days
after such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim). If an extension of time
for reviewing the appeal is required because of special circumstances, written
notice of the extension shall be furnished to the Claimant prior to the
commencement of the extension. The notice will indicate the special
circumstances requiring the extension of time and the date by which the
Committee expects to render the determination on review. Following its review
of any additional information submitted by the Claimant, the Committee shall
render a decision on its review of the denied claim.
(c) Contents of Notice. If a benefits claim is completely or partially
------------------
denied on review, notice of such denial shall be in writing and shall set forth
the reasons for denial in plain language.
(1) The decision on review shall set forth (i) the specific reason or
reasons for the denial, (ii) specific references to the pertinent Plan
provisions on which the denial is based, (iii) a statement that the Claimant is
entitled to receive, upon request and free of charge, reasonable access to and
copies of all documents, records, or other information relevant (as defined
above) to the Claimant's claim, and (iv) a statement describing any voluntary
appeal procedures offered by the plan and a statement of the Claimant's right to
bring an action under Section 502(a) of ERISA.
(2) For the denial of a Disability Benefit, the notice will also
include a statement that the Committee will provide, upon request and free of
charge, (i) any internal rule, guideline, protocol or other similar criterion
relied upon in making the decision, (ii) any medical opinion relied upon to make
the decision and (iii) the required statement under Section
2560.503-1(j)(5)(iii) of the Department of Labor regulations.
9.4 Legal Action. A Claimant may not bring any legal action relating
-------------
to a claim for benefits under the Plan unless and until the Claimant has
followed the claims procedures under the Plan and exhausted his or her
administrative remedies under such claims procedures. Legal action must be
brought within two years of the date the claim first arose.
9.5 Discretion of Committee. All interpretations, determinations and
------------------------
decisions of the Committee with respect to any claim shall be made in its sole
discretion, and shall be final, conclusive and binding upon all persons having
any interest in this Plan.
18
ARTICLE X
MISCELLANEOUS
10.1 Adoption by Affiliates. Any subsidiary or affiliate of the
------------------------
Company may, with the approval of the Committee, adopt this Plan by appropriate
action of its board of directors, and thereby become a Participating Employer.
Any Participating Employer may, by appropriate action of its board of directors,
terminate its participation in the Plan. The Committee may, in its sole
discretion, terminate a Participating Employer's participation in the Plan at
any time. The termination of the participation in this Plan by a Participating
Employer will not, however, affect the rights that any Participant may have to
amounts credited to his or her Deferred Compensation Account without his or her
written consent.
10.2 Anti-assignment Rule. No interest of any Participant, spouse or
---------------------
Beneficiary under this Plan and no benefit payable hereunder shall be assigned
as security for a loan, and any such purported assignment shall be null, void
and of no effect, nor shall any such interest or any such benefit be subject in
any manner, either voluntarily or involuntarily, to anticipation, sale,
transfer, assignment or encumbrance by or through any Participant, spouse or
Beneficiary.
10.3 No Legal or Equitable Rights or Interest. No Participant or other
--------------------------------------------
person shall have any legal or equitable rights or interest in this Plan that
are not expressly granted in this Plan. Participation in this Plan does not give
any person any right to be retained in the service of the Company or any of its
subsidiaries or affiliated companies. The right and power of the Company (or any
of its subsidiaries or affiliated companies that is the Employee's employer) to
dismiss or discharge an Employee is expressly reserved.
10.4 No Employment Contract. Nothing contained herein shall be
------------------------
construed to constitute a contract of employment between an Employee and the
Company or any of its subsidiaries or affiliated companies.
10.5 Headings. The headings of Sections are included solely for convenience
-------
of reference, and if there is any conflict between such headings and the text of
this Plan, the text shall control.
10.6 Invalid or Unenforceable Provisions. If any provision of this Plan
--------------------------------------
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not affect any other provisions hereof and the Committee may elect in its
sole discretion to construe such invalid or unenforceable provisions in a manner
that conforms to applicable law or as if such provisions, to the extent invalid
or unenforceable, had not been included.
10.7 Governing Law. To the extent not preempted by ERISA, the laws of the
-------------
State of Georgia shall govern the construction and administration of the Plan.
19
IN WITNESS WHEREOF, the Company has caused this Plan to be adopted this ___
day of December, effective as of the Effective Date.
RPC, INC.
By:
---------------------------------------
Richard A. Hubbell, President & Chief
Executive fficer
20
EXHIBIT A
- ----------
Schedule of Participants Entitled to Receive Enhanced Benefit Contribution
--------------------------------------------------------------------------
[Attached]
----------
RPC, INC.
AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT PLAN AS OF JANUARY 2005
EXHIBIT A
Last First Company Contribution
---- ----- ------- ------------
Banks Harvey CUDD 6,254.47
Bartlett Tom CUDD 13,425.48
Bridge Billy CUDD 7,193.24
Bridge Dennis CUDD 1,662.69
Fields Michael CUDD 2,426.05
Finley Douglas CUDD 10,959.12
Goodman Charles CUDD 13,440.71
Jackson Ron CUDD 12,881.12
Olliver Tom CUDD 5,195.60
Pennock Larry CUDD 6,397.69
Roles Rocky CUDD 5,151.14
Roles Ronnie CUDD 9,537.19
Ross Eric CUDD 3,195.78
Saliba Raymond CUDD 19,468.35
Scott Bud CUDD 10,399.00
Shafer Howard CUDD 8,385.94
Winters Edward
(Steve) CUDD 5,871.69
141,845.27
Cooper Philip O&GH 11,810.82 11,810.82
Carrere II James PSII 5,497.10
Daniel James PSII 11,345.65
Denson Lenard PSII 6,800.87
Moss III Jonathan PSII 4,360.37
Powell Michael PSII 4,076.59 32,080.57
Caillouet Jim PTL 5,854.57 5,854.57
Hubbell Richard RPCA 26,262.31 26,262.31
217,853.55