EXHIBIT (10.3)
Supplemental Executive Retirement Plan
Tupperware Corporation
June 1, 2003
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Contents
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Article 1. Establishment and Purpose 3
Article 2. Definitions 3
Article 3. Administration 8
Article 4. Eligibility and Participation 9
Article 5. Benefit Amount 9
Article 6. Rabbi Trust 11
Article 7. Amendment and Termination 12
Article 8. Beneficiary Designation 12
Article 9. Miscellaneous 12
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Tupperware Corporation
Supplemental Executive Retirement Plan
Article 1. Establishment and Purpose
1.1. Establishment. Tupperware Corporation, a Delaware corporation (the
"Company"), hereby establishes, effective as of June 1, 2003 (the "Effective
Date"), a supplemental executive retirement plan for E. V. Goings, Chief
Executive Officer, and other key employees of the Company as determined at the
Committee's sole discretion, which shall be known as the "Tupperware Corporation
Supplemental Executive Retirement Plan" (the "SERP").
1.2. Purpose. The purpose of the SERP is to provide additional supplemental
pension benefits to E. V. Goings and a select group of management employees of
the Company as determined herein.
Article 2. Definitions
2.1. Definitions. Whenever used herein, the following terms shall have the
respective meanings set forth below and, when intended, such terms shall be
capitalized.
(a) "Actuarial Equivalent" or "Actuarially Equivalent" means the
equivalence in present value between two forms and/or times of payment
based upon a determination by an actuary chosen by the Committee,
using sound actuarial assumptions at the time of such determination.
Actuarial assumptions prescribed by the Base Retirement Plan, or
actually used to calculate a Participant's benefit thereunder, shall
be automatically deemed to be sound actuarial assumptions for purposes
of this SERP.
(b) "Affiliate" shall have the same meaning as such term is defined in the
Base Retirement Plan.
(c) "Base Retirement Plan" means the Tupperware Corporation Base
Retirement Plan, or any predecessor or successor plan thereto.
(d) "Beneficial Owner" shall have the meaning ascribed to such term in
Rule 13d-3 of the General Rules and Regulations under the Exchange
Act.
(e) "Beneficiary" means the person or persons designated in accordance
with Article 8 to receive any benefits under the SERP in the event of
a Participant's death.
(f) "Benefit Commencement Date" means the first day of the first month for
which an amount is payable as a retirement benefit as determined under
the Base Retirement Plan.
(g) "Board" means the Board of Directors of the Company.
(h) "Cause" means:
(i) The willful and continued failure of a Participant to perform
substantially the Participant's duties with the Company or one of
its affiliates (other than any such
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failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to the Participant by the Board which specifically
identifies the manner in which the Board believes that the
Participant has not substantially performed the Participant's
duties;
(ii) The willful engaging by a Participant in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company;
(iii) The willful violation by a Participant of any restrictive
covenants a Participant is currently subject to and may become
subject to in the future; or
(iv) Conviction of, or a plea of nolo contendere to, a felony.
For purposes of this provision, no act or failure to act, on the part
of a Participant, shall be considered "willful" unless it is done, or
omitted to be done, by the Participant in bad faith or without
reasonable belief that the Participant's action or omission was in the
best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by a Participant in good
faith and in the best interests of the Company. The cessation of
employment of a Participant shall not be deemed to be for Cause unless
and until there shall have been delivered to the Participant a copy of
a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Participant and the Participant
is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the
Participant is guilty of the conduct described in any one of
subparagraphs (i), (ii), (iii), or (iv) above, and specifying the
particulars thereof in detail.
(i) "Change in Control" of the Company means:
(i) An acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
fifteen percent (15%) or more of either (1) the then outstanding
Shares (the "Outstanding Company Common Stock") or (2) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of
Directors (the "Outstanding Company Voting Securities");
excluding, however, the following: (1) any acquisition directly
from the Company, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so
converted was itself acquired from the Company, (2) any
acquisition by the Company, (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or (4) any
acquisition by any Person pursuant to a transaction which
complies with clauses (1), (2), and (3) of subsection (iii) of
this definition; or
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(ii) A change in the composition of the Board such that the
individuals who, as of the Effective Date of the SERP, constitute
the Board (such Board shall be hereinafter referred to as the
"Incumbent Board" cease for any reason to constitute at least a
majority of the Board; provided, however, for purposes of this
definition, that any individual who becomes a member of the Board
subsequent to such Effective Date, whose election, or nomination
for election by the Company's stockholders, was approved by a
vote of at least a majority of those individuals who are members
of the Board and who were also members of the Incumbent Board (or
deemed to be such pursuant to this proviso) shall be considered
as though such individual were a member of the Incumbent Board;
but, provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by
or on behalf of a person or legal entity other than the Board
shall not be so considered as a member of the Incumbent Board; or
(iii) The consummation of a reorganization, merger, statutory share
exchange or consolidation, or sale or other disposition of all or
substantially all of the assets of the Company or the acquisition
of assets or stock of another entity by the Company or any of its
subsidiaries ("Corporate Transaction"), in each case unless,
following such Corporate Transaction, (1) all or substantially
all of the individuals and entities who were the Beneficial
Owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly,
more than sixty percent (60%) of, respectively, the common stock
and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of
Directors, as the case may be, of the entity resulting from such
Corporate Transaction (including, without limitation, an entity
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such
Corporate Transaction, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities, as the case may be,
(2) no Person (other than the Company, any employee benefit plan
(or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or such entity resulting
from such Corporate Transaction) beneficially owns, directly or
indirectly, twenty percent (20%) or more of, respectively, the
outstanding shares of Common Stock of the corporation resulting
from such Corporate Transaction or the combined voting power of
the outstanding voting securities of such corporation entitled to
vote generally in the election of Directors except to the extent
that such ownership existed with respect to the Company prior to
the Corporate Transaction, and (3) individuals who were members
of the Incumbent Board at the time of the execution of the
initial agreement or of the action of the Board providing for
such Corporate Transaction constitute at least a majority of the
Board of Directors of the corporation resulting
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from such Corporate Transaction constitute at least a majority of
the Board of Directors of the corporation resulting from such
Corporate Transaction; or
(iv) The approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
(j) "Code" means the Internal Revenue Code of 1986, as amended.
(k) "Committee" means the Compensation and Directors Committee of the
Board, or any other committee designated by the Board to administer
the SERP, pursuant to Section 3.1 herein.
(l) "Common Stock" shall mean the common stock of the Company, par value
$.01 per share.
(m) "Company" means Tupperware Corporation, a Delaware corporation, or any
successor thereto as provided in Section 9.6 herein.
(n) "Company Contributions" mean the aggregate total of the Company's
basic Employer Contributions (including any earnings thereon) as such
term is defined and credited to a Participant's account under the
Tupperware Corporation's Retirement Savings Plan, or any predecessor
or successor plan thereto.
(o) "Credited Service" means a Participant's complete and partial years of
service during which a Participant was an employee of the Company or
an Affiliate.
(p) "Director" means any individual who is a member of the Board of
Directors of the Company.
(q) "Disability" has the same meaning as the term is defined under the
Base Retirement Plan.
(r) "Effective Date" means the date the SERP becomes effective, as set
forth in Section 1.1 herein.
(s) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor act thereto.
(t) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or a successor act thereto.
(u) "Final Average SERP Pay" means a Participant's highest average SERP
Pay over a consecutive three (3) year period in the Participant's last
five (5) years of Credited Service.
(v) "Normal Retirement Age" means a Participant's sixty-fifth (65th)
birthday.
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(w) "Normal Retirement Date" means the first day of the month next
following the Participant's attainment of his Normal Retirement Age.
(x) "Participant" means E. V. Goings, Chief Executive Officer, and other
key employees of the Company selected by the Committee for
participation in the SERP in accordance with Article 4 herein.
(y) "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section 13(d).
(z) "Plan Year" means the consecutive twelve (12) month period beginning
each January 1 and ending December 31.
(aa) "SERP Pay" means a Participant's annual base salary plus annual
incentive compensation awards or bonuses earned in a calendar year
(and payable in the next calendar year) under the Company's annual
incentive programs (not including any special programs) without taking
into account any reductions pursuant to voluntary deferrals of such
base salary or annual incentive compensation awards or bonuses under
tax-qualified or nonqualified plans of the Company and/or its
Affiliates. SERP Pay shall not include any compensation award payable
to a Participant pursuant to a Company program which establishes
incentive award opportunities which are contingent upon performance
measured over periods greater than one (1) year including, but not
limited to, stock awards such as stock options, restricted stock,
performance shares, or other equity awards, special cash or equity
retention awards, amounts paid as the reimbursement for expenses
incurred on behalf of the Company and/or its Affiliates, or incidental
benefits paid on behalf of a Participant such as hospital insurance,
health and accident insurance, and group life insurance.
(ab) "Share" means a share of Common Stock of the Company.
(ac) "Spousal Consent" means the written consent of a Participant's spouse
to make a change in the form of payment of benefits under the SERP in
accordance with Section 5.2 herein, as applicable or to make a change
in the Beneficiary designated under this SERP to someone other than
the Participant's spouse. Such consent must be witnessed by a notary
public in order to be effective and may be evidenced on such form as
the Committee may prescribe.
(ad) "Supplemental Plan" means the Tupperware Corporation Supplemental
Plan, or any predecessor or successor plan thereto.
2.2. Gender and Number. Except when otherwise indicated by the context, any
masculine term used herein also shall include the feminine; the plural shall
include the singular, and the singular shall include the plural.
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Article 3. Administration
3.1. The Committee. The SERP shall be administered by the Committee, or by
any other committee designated by the Board to administer the SERP. The
Committee may delegate any or all of its administrative responsibilities
hereunder.
3.2. Authority of the Committee. Subject to the provisions herein and
subject to ratification by the Board, the Committee shall have the full power to
amend or terminate the SERP at any time (subject to Article 7), to select
employees for participation in the SERP, to determine the terms and conditions
of each employee's participation, to construe and interpret the SERP and any
agreement or instrument entered into hereunder, and to establish, amend, or
waive procedures for the SERP's administration. Further, the Committee shall
have full power to make any other determination that may be necessary or
advisable for the SERP's administration.
3.3. Actions by the Committee or the Board. No member of the Committee or
the Board or any other committee of the Board or any employee of the Company
(each such person a "Covered Person") shall have any liability to any person
(including any employee) for any action taken or omitted to be taken or any
determination made in good faith with respect to the SERP. Each Covered Person
shall be indemnified and held harmless by the Company against and from any loss,
cost, liability, or expense (including attorneys' fees) that may be imposed upon
or incurred by such Covered Person in connection with or resulting from any
action, suit, or proceeding to which such Covered Person may be a party or in
which such Covered Person may be involved by reason of any action taken or
omitted to be taken under the SERP and against and from any and all amounts paid
by such Covered Person, with the Company's approval, in settlement thereof, or
paid by such Covered Person in satisfaction of any judgment in any such action,
suit, or proceeding against such Covered Person, provided that the Company shall
have the right, at its own expense, to assume and defend any such action, suit,
or proceeding and, once the Company gives notice of its intent to assume the
defense, the Company shall have sole control over such defense with counsel of
the Company's choice. The foregoing right of indemnification shall not be
available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case,
not subject to further appeal, determines that the acts or omissions of such
Covered Person giving rise to the indemnification claim resulted from such
Covered Person's bad faith, fraud, or willful misconduct. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which Covered Persons may be entitled under the Company's Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise or any other power
that the Company may have to indemnify such persons or hold them harmless.
3.4. Decisions Binding. All determinations and decisions made by the
Committee or the Board and all related orders or resolutions of the Committee or
the Board shall be final, conclusive, and binding on all persons, including the
Company, its Affiliates, its employees, Participants, and their estates and
Beneficiaries.
3.5. Claims Procedure. The Committee shall provide adequate written notice
within ninety (90) days to a Participant or Beneficiary whose claim for benefits
under the SERP has been denied, setting forth (a) the specific reason or reasons
for such denial, (b) the specific reference to pertinent provisions of this SERP
on which such denial is based, (c) a description of any additional material or
information necessary for the Participant or Beneficiary to perfect his claim
and an explanation why such material or such information is necessary, (d)
appropriate information as to the
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steps to be taken if the Participant or Beneficiary wishes to submit the claim
for review, and (e) the time limits for requesting a review, including a
statement of the Participant's or Beneficiary's right to bring a civil action
under section 502(a) of ERISA following an adverse benefit determination on
review.
Article 4. Eligibility and Participation
4.1. Eligibility. Persons eligible to participate in this SERP shall be
limited to full-time, salaried employees of the Company or an Affiliate, who are
determined to be "key employees" by the Committee and who are approved for
participation by the Board. Further, to be eligible, an employee must be among a
select group of management or highly compensated employees of the Company or an
Affiliate, such that the SERP qualifies for a "top hat" exemption from most of
the substantive requirements of Title I of ERISA, as further described in
Section 9.1 herein.
4.2. Participation. The Board, at its sole and absolute discretion,
reserves the right to approve the participation of any and all employees who
have been designated by the Committee as being "key employees" and therefore
eligible to participate in this SERP.
4.3. Notification of Participation. Employees who have been selected and
approved for SERP participation shall be notified in writing of their selection
at least thirty (30) calendar days prior to the beginning of the Plan Year in
which they are eligible, or as soon as administratively possible thereafter.
Once notified, an employee shall have a contractual right to all benefits
accrued and vested while a Participant in this SERP except as may otherwise be
provided in Section 5.4.
However, no employee shall have the right to be selected to participate in
this SERP or, having been so selected, to be selected to participate in any
future Plan Year. Further, nothing in the SERP shall interfere with or limit in
any way the right of the Company or an Affiliate to terminate any Participant's
employment at any time, nor confer upon any Participant a right to continue in
the employ of the Company or an Affiliate.
In the event a Participant is deemed by the Committee to be ineligible to
continue participation in the SERP for any reason, such individual shall become
an inactive Participant, retaining all the rights relating to benefits
previously accrued and vested herein, as described under the SERP. In such
event, the Committee or the Board, at its sole and absolute discretion, may
immediately cash out a Participant's benefits accrued under this SERP in a
single Actuarially Equivalent lump sum. Such payment shall be in full
satisfaction of the Participant's benefits under this SERP.
Article 5. Benefit Amount
5.1. Vesting. A Participant (or a Participant's Beneficiaries) shall become
fully vested in benefits under the SERP upon the completion of five (5) years of
Credited Service from the Participant's original date of hire; provided,
however, that a Participant shall become fully vested if a Participant remains
employed through age sixty-five (65). Notwithstanding the foregoing, a
Participant shall become fully vested in their accrued benefits under this SERP
upon a Participant's death, Disability, or a Change in Control of the Company or
in the event that the SERP is terminated by the Company.
Notwithstanding the above, the Committee may accelerate the vesting of any
or all SERP benefits at its discretion.
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5.2. SERP Benefit. Subject to Section 5.4, each Participant (or the
Participant's Beneficiaries) who terminates active employment with the Company
or Affiliate for any reason and who is fully vested in the benefits under the
SERP in accordance with Section 5.1 shall be entitled to an annual benefit equal
to the excess (if any) of (a) over (b), where (a) and (b) are defined as
follows:
(a) The Participant's Final Average SERP Pay multiplied by three percent
(3%) multiplied by the Participant's Credited Service.
(b) The aggregate sum of the actual benefits that a Participant (or the
Participant's Beneficiaries) is entitled to under the Base Retirement
Plan, the Supplemental Plan, and any Company Contributions (to the
extent the Participant was vested under the Base Retirement Plan,
Supplemental Plan, and in any Company Contributions), beginning on the
Benefit Commencement Date. In determining a Participant's actual
benefits under the above-mentioned plans, the normal form of benefit
as stipulated under the Base Retirement Plan (single life annuity)
shall be used to calculate a Participant's offset for actual benefits
under the Base Retirement Plan, Supplemental Plan, and any Company
Contributions. As such, a Participant's benefit balance in Company
Contributions beginning on a Participant's Benefit Commencement Date
shall be the Actuarial Equivalent benefit as determined using the
actuarial assumptions as stipulated in the Base Retirement Plan.
Notwithstanding anything to the contrary in this SERP, the number of
years of Credited Service used in (a) above shall not exceed twenty
(20) years.
In the event a Participant becomes ineligible to continue participation in
this SERP for any reason other than for Cause, prior to the Participant's
termination of employment or in the event that this SERP is discontinued as to
such Participant prior to the Participant's termination of employment, the
accrued benefit earned by such Participant which will be payable under this
SERP, subject to satisfaction of the vesting requirements of Section 5.1 above,
will equal the differential between the amount computed under (a) above as of
the date of the cessation of the Participant's active participation in the Plan
over (b) the amount computed under (b) above determined as of such date.
5.3. Reduction for Early Retirement. A Participant's vested SERP benefit
shall be reduced by 0.2 percent for each of the first thirty-six (36) complete
calendar months and by 0.4 percent for each additional complete calendar month
by which his first early retirement benefit payment precedes his Normal
Retirement Date. Notwithstanding the above, a Participant must have completed at
least ten (10) years of Credited Service to be eligible to elect a Benefit
Commencement Date beginning on the first day of any month after the Participant
attains age fifty-five (55) and prior to a Participant's Normal Retirement Date.
5.4. Timing and Manner of Payment. The Company shall commence payment of
benefits to a Participant (or the Participant's Beneficiaries) under this SERP
as of the Participant's Benefit Commencement Date. In the case of an unmarried
Participant, the form of benefit shall be the standard form of benefit provided
to an unmarried Participant under the Base Retirement Plan and, in the case of a
married Participant, the form of benefit shall be the "Statutory 50% Joint and
Survivor Annuity Option" as defined under the Base Retirement Plan.
Notwithstanding the foregoing, a Participant may elect to have his benefits paid
in any Actuarially Equivalent form as provided under
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the Base Retirement Plan or in any other Actuarially Equivalent form, including
a lump sum, as may be permitted from time to time by the Company, provided,
however, that no such election shall be valid unless filed in writing with the
Company at least three-hundred and sixty-five (365) calendar days prior to such
Participant's termination of employment with the Company. The filing of any such
valid election form shall act as an immediate revocation as to any prior
election. In addition, in the case of a married Participant, such an election
shall not be valid unless accompanied by a Spousal Consent.
5.5. Death and Disability Benefits. Notwithstanding anything to the
contrary in this SERP, in the event of a Participant's termination of employment
due to death or Disability, the timing and manner of the payment of a
Participant's accrued SERP benefit shall mirror the payout provisions associated
with death and Disability as stipulated in the Base Retirement Plan.
5.6. Forfeiture of Benefit. Notwithstanding anything to the contrary in
this SERP, in the event of a Participant's termination of employment for Cause,
the Participant and the Participant's Beneficiaries shall immediately forfeit
all rights and entitlement to benefits under this SERP, whether or not vested.
Article 6. Rabbi Trust
6.1. Establishment of a Rabbi Trust. The Company may, in its sole and
absolute discretion, at any time after the Effective Date, establish an
irrevocable rabbi trust (which shall be a grantor trust within the meaning of
Code Sections 671-677) for the benefit of Participants and Beneficiaries of
Participants, as appropriate. Any rabbi trust so created shall have an
independent trustee (such trustee to have a fiduciary duty to carry out the
terms and conditions of this SERP) as selected by the Company. The provisions of
this Article 6 shall apply only in the event that the Company exercises its
discretion under this Section 6.1 and establishes a rabbi trust.
6.2. Terms of the Rabbi Trust. Assets contained in the rabbi trust shall at
all times be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; such terms shall be
specifically defined within the provisions of the rabbi trust, along with a
required procedure for notifying the trustee of any such bankruptcy or
insolvency.
6.3. Funding of the Rabbi Trust. Subject to the other provisions of this
Section 6.3, at the sole discretion of the Committee, the Company shall
contribute cash, cash equivalents, or property to the rabbi trust for the
benefit of Participants and Participants' Beneficiaries, as the Committee deems
appropriate.
However, the rabbi trust will be funded immediately with an amount equal to
the Actuarial Equivalent of Participants' and Beneficiaries' benefits under this
SERP in the event that the Company undergoes a Change in Control, as such amount
is determined by the Company's actuary.
6.4. Distributions from the Rabbi Trust. Following a Change in Control of
the Company, distributions of a Participant's benefits shall be made from the
rabbi trust directly to the Participant in accordance with Article 5 herein upon
such Participant's termination of employment.
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To the extent any benefits provided under this SERP are actually paid from
the rabbi trust, the Company shall have no further obligation with respect
thereto, but to the extent not so paid, such benefits shall remain the
obligation of, and shall be paid by the Company.
Article 7. Amendment and Termination
The Board and the Committee hereby reserve the right to amend, modify,
and/or terminate the SERP at any time. However, no such amendment or termination
shall in any manner adversely affect the rights or benefits of any Participant
previously accrued and vested under this Plan without the consent of the
Participant.
Article 8. Beneficiary Designation
Each Participant shall be entitled to designate a Beneficiary or
Beneficiaries by filing a signed, written notice of such designation with the
Company, in such form as the Committee may prescribe. A Participant may file a
Beneficiary designation form with the Company at any time and the filing of any
such form shall act as an immediate revocation as to any prior Beneficiary
designations. In addition, in the case of a married Participant, any Beneficiary
designation of someone other than the Participant's spouse shall not be valid
unless accompanied by a Spousal Consent. In the event of a dissolution of
marriage, a Participant's Beneficiary designation shall be deemed automatically
revoked to the extent that a Beneficiary is the Participant's spouse. In such
event, or in the absence of a Beneficiary designation form, the payment of
benefits under this SERP shall be made to the parties entitled to receive
payment of qualified benefits under the Base Retirement Plan.
Article 9. Miscellaneous
9.1. Unfunded Plan. This SERP is intended to be an unfunded plan maintained
primarily to provide supplemental pension benefits for "a select group of
management or highly compensated employees" within the meaning of Sections 201,
301, and 401 of ERISA, and therefore is further intended to be exempt from the
provisions of Parts 2, 3, and 4 of Title I of ERISA. Accordingly, the Committee
may terminate the SERP, subject to Article 7 herein, for any or all
Participants, in order to achieve and maintain this intended result.
9.2. General Unsecured Creditor. Nothing contained herein shall give any
Participant, Beneficiary, or their legal representative any rights to assets
that are greater than those of a general unsecured creditor of the Company.
Participants and their Beneficiaries, heirs, successors, and assigns shall have
no secured legal or equitable rights, interest, or claims in any property or
assets of the Company or its Affiliates. Any and all of the Company's assets and
policies, and those of its Affiliates, shall be, and remain, the general,
unpledged, unrestricted assets of the Company or of its Affiliates as the case
may be. The Company's obligation under this SERP shall be that of an unfunded
and unsecured promise to pay money in the future.
9.3. No Right to Employment. Nothing in this SERP shall be construed as
conferring upon any Participant any right to continue in the employment of the
Company, nor shall it interfere with the rights of the Company to terminate the
employment of any Participant or take any other action affecting any
Participant's responsibilities, status, compensation, or any other aspect of the
employment relationship.
9.4. Payment to Incompetent. If any person entitled to benefits under this
SERP shall be a minor or shall be either physically or mentally incompetent in
the judgment of the Committee, such
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benefits may be paid to a court-appointed guardian or trust specifically
designated for the benefit of the minor or incompetent Beneficiary. In the event
of such payment, the Company, the Board, and the Committee shall be discharged
from all further liability for such payment.
9.5. Costs of the SERP. All costs of implementing and administering the
SERP, and all costs incurred in providing the benefits described herein, shall
be borne by the Company.
9.6. Tax Withholding. The Company shall have the right to require
Participants to remit to the Company an amount sufficient to satisfy federal,
state, and local tax withholding requirements, or to deduct from all payments
made pursuant to the SERP amounts sufficient to satisfy such withholding
requirements.
9.7. Nontransferability. Participants' rights to benefits provided
hereunder may not be sold, transferred, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution. In
no event shall the Company make any payment under the SERP to any assignee or
creditor of a Participant or to any assignee or creditor of a Participant's
Beneficiary.
9.8. Successors. All obligations of the Company under the SERP shall be
binding upon any successor to the Company, whether the existence of such
successor is the result of a direct or indirect purchase, merger, consolidation,
or otherwise, of all or substantially all of the business and/or assets of the
Company.
9.9. Severability. In the event any provision of the SERP shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the SERP, and the SERP shall be construed and enforced as
if the illegal or invalid provision had not been included.
9.10. Transfer of Employment. Notwithstanding anything to the contrary in
this SERP, the transfer of employment of a Participant within the Company shall
not be deemed a termination of the Participant's employment with the Company for
the purposes of this SERP.
9.11. Applicable Law. To the extent not preempted by federal law, the SERP
shall be governed by and construed in accordance with the laws of the State of
Delaware without giving effect to principles of conflicts of laws.
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