WEINGARTEN REALTY INVESTORS RETIREMENT BENEFIT RESTORATION PLAN
EXHIBIT
10.37
XXXXXXXXXX
REALTY INVESTORS
XXXXXXXXXX
REALTY INVESTORS
Table
of Contents
Page
Article
I
- Definitions
1.1
Account
1.2
Administrator
1.3
Board
1.4
Bonus
1.5
Code
1.6
Disability or Disabled
1.7
Early
Retirement
1.8
Earnings
1.9
Effective Date
1.10
Eligible Employee
1.11
Employee
1.12
Employer Contribution
1.13
Employer Credit
1.14
Key
Employee.
1.15
Participant
1.16
Participation Agreement
1.17
Pension Plan
1.18
Plan
Year
1.19
Retirement
1.20
Retirement Age
1.21
Salary
1.22
Trust
1.23
Trustee
1.24
Vesting Year of Service
Article
II - Participation
2.1
Commencement of Participation
Article
III - Retirement Restoration Benefit
3.1
Employer Credits.
3.2
Last
Day Requirement
3.3
Calculation of Employer Credits
3.4
Time
of Contributions
3.5
Withholding
3.6
Participation in Xxxxxxxxxx SERP
Article
IV - Vesting
4.1
Vesting of Account
4.2
Vesting in Event of Retirement, Disability, or Death.
4.3
Amounts Not Vested
Article
V
- Accounts
5.1
Bookkeeping Accounts
5.2
Adjustment and Crediting of Accounts.
5.3
Investment of Trust Assets
5.4
Forfeitures
Article
VI - Distributions
6.1
Entitlement to Distribution
6.2
Distribution Election.
6.3
Form
of Payment
6.4
Commencement of Payment.
6.5
Minimum Distribution
Article
VII - Beneficiaries
7.1
Beneficiaries.
7.2
Change of Beneficiary Designation
7.3
Determination of Beneficiary.
7.4
Lost
Beneficiary.
Article
VIII - Funding
8.1
Prohibition Against Funding
8.2
Deposits in Trust
Article
IX - Claims Administration
9.1
General
9.2
Claim
Review
9.3
Right
of Appeal
9.4
Review of Appeal
9.5
Designation
Article
X
- General Provisions
10.1
Administrator.
10.2
No
Assignment
10.3
No
Employment Rights
10.4
Incompetence
10.5
Identity
10.6
Other Benefits
10.7
No
Liability
10.8
Expenses
10.9
Insolvency
10.10
Amendment
10.11
Plan Termination.
10.12
Employer Determinations
10.13
Construction
10.14
Governing Law
10.15
Severability
10.16
Entire Agreement
10.17
Headings
10.18
Terms
XXXXXXXXXX
REALTY INVESTORS
RECITALS
Xxxxxxxxxx
Realty Investors (“Employer”), a Texas Real Estate Investment Trust, has
previously established the Xxxxxxxxxx Realty Investors Retirement Benefit
Restoration Plan (“Plan”).
The
purpose of the Plan is to provide eligible employees a supplemental benefit
equal to the additional retirement benefit he or she would have received under
the Xxxxxxxxxx Realty Investors Retirement Plan if such Participant’s benefit
were determined under the provisions of such plan in effect on December 31,
2001
(“Defined Benefit Formula”).
The
Plan
is an unfunded arrangement established and maintained primarily for the benefit
of a select group of management or highly compensated employees and is intended
to be exempt from the participation, vesting, funding, and fiduciary
requirements set forth in Title I of the Employee Retirement Income Security
Act
of 1974, as amended.
The
Employer now desires to amend and restate the Plan, effective January 1, 2005,
or as otherwise provided herein, to meet the applicable requirements of Section
409A of the Internal Revenue Code. The Plan shall be interpreted and
administered to the extent possible in a manner consistent with such Code
Section.
NOW
THEREFORE,
the
Employer hereby adopts this restatement of the Plan effective January 1, 2005,
or as otherwise provided herein, as follows:
Article
I - Definitions
| 1.1 |
Account.
The bookkeeping account established for each Participant as provided
in
section 5.1 hereof.
|
| 1.2 |
Administrator.
The individual serving as the Director of Human Resources for the
Employer
or such other person duly authorized by the Executive Committee of
the
Board of Managers. The Administrator shall be the agent for the Employer
with respect to the Trust.
|
| 1.3 |
Board.
The Board of Trust Managers of the
Employer.
|
| 1.4 |
Bonus.
Compensation which is designated as bonus by the Employer and which
relates to services performed during an incentive period by an Eligible
Employee in addition to his or her Salary, including any pretax elective
deferrals from said Bonus to any Employer sponsored plan that includes
amounts deferred under a Participation Agreement or a qualified cash
or
deferred arrangement under Code Section 401 (k) or cafeteria plan
under
Code Section 125.
|
| 1.5 |
Code.
The Internal Revenue Code of 1986, as
amended.
|
| 1.6 |
Disability
or Disabled.
A
Participant will be considered Disabled for Plan purposes if the
Participant is a “Grandfathered Participant” (as defined in the Pension
Plan), has completed at least ten years of Service (as defined in
the
Pension Plan) upon separation from service, and is disabled within
the
meaning of the Social Security Act, which is defined as being 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.
|
| 1.7 |
Early
Retirement.
Early Retirement means a Participant has retired from the employ
of the
Employer on or after age 55 after having completed 15 years of Service
with the Employer, as determined under the Pension
Plan.
|
| 1.8 |
Earnings.
The Earnings of a Participant shall have the same meaning as “Earnings”
under the Pension Plan, except that the following modifications to
such
definition shall apply for purposes of the
Plan:
|
| (a) |
Earnings
shall be increased by:
|
| (i) |
The
fair market value (determined by the Board) of restricted stock awards
granted during the Plan Year;
|
| (ii) |
The
fair market value (determined by the Board) of stock options granted
during the Plan Year; and
|
| (b) |
Earnings
shall be decreased by:
|
| (i) |
any
amount realized from the exercise of a non-statutory stock option
or from
a disqualifying disposition of an incentive stock option during the
Plan
Year;
|
| (ii) |
any
amount includable in income derived from a non-qualified deferred
compensation plan during the Plan
Year;
|
| (iii) |
any
amount includable in income by reason of a Participant becoming
substantially vested in any restricted stock award or other transfer
of
property subject to Section 83 of the Code during the Plan
Year.
|
| (c) |
Earnings
shall be determined without regard to any dollar limitation imposed
by
Section 401(a)(17) of the Code.
|
| 1.9 |
Effective
Date.
The effective date of this restatement of the Plan, January 1, 2005,
or as
otherwise provided herein.
|
| 1.10 |
Eligible
Employee.
An Employee shall be considered an Eligible Employee if such Employee
is
designated as an Eligible Employee by the
Employer.
|
| 1.11 |
Employee.
Any person employed by the
Employer.
|
| 1.12 |
Employer
Contribution.
Assets set aside or transferred to a trust at the discretion of the
Employer in order to fund the benefits due under this Plan. Participants
shall have no right or claim to such Employer Contributions, which
shall
remain the general assets of the Employer.
|
| 1.13 |
Employer
Credit.
The amount credited to the bookkeeping Account of a Participant in
accordance with Article III.
|
| 1.14 |
Key
Employee.
|
| (a) |
An
officer of an Employer earning more than $135,000 per year, as adjusted
from time to time in accordance with Internal Revenue Service guidelines,
|
| (b) |
A
five percent owner of an Employer,
or
|
| (c) |
A
one percent owner of an Employer having Compensation from the Employer
of
more than $150,000,
|
all
as
determined in accordance with Sections 409A and 416(i) of the Code and
applicable Treasury Regulations issued thereunder, provided stock in the
Employer corporation is publicly traded on an established securities
market.
| 1.15 |
Participant.
An Eligible Employee who is a Participant as provided in Article
II.
|
| 1.16 |
Participation
Agreement.
The separate written agreement, submitted to the Administrator, by
which
an Eligible Employee agrees to participate in the Plan and designates
the
form and timing of the distribution of his or her
Accounts.
|
| 1.17 |
Pension
Plan.
The Xxxxxxxxxx Realty Investors Retirement
Plan.
|
| 1.18 |
Plan
Year.
The twelve month period beginning January 1 and ending December
31.
|
| 1.19 |
Retirement.
Retirement means a Participant has retired from the employ of the
Employer
after attaining Retirement Age.
|
| 1.20 |
Retirement
Age.
The attainment of age 65.
|
| 1.21 |
Salary.
An Eligible Employee's base salary rate or rates in effect at any
time
during a Plan Year, including any pretax elective deferrals from
said
Salary to any Employer-sponsored plan that includes amounts deferred
under
a nonqualified plan sponsored by the Employer or under a qualified
cash or
deferred arrangement under Code Section 401 (k) or “cafeteria plan” under
Code Section 125.
|
| 1.22 |
Trust.
The agreement or agreements between the Employer and the Trustee
under
which the assets of the Plan may be held, administered and managed.
Participants shall have no right or claim to Trust assets set aside
to
fund benefits under this Plan, which shall remain the general assets
of
the Employer.
|
| 1.23 |
Trustee.
The trustee and any successor trustee that shall become trustee pursuant
to the terms of a separate trust agreement which is made a part of
this
Plan.
|
| 1.24 |
Vesting
Year of Service.
Vesting Year of Service shall be each 12-month period of employment
with
the Employer commencing with the Participant's date of
hire.
|
********
Article
II - Participation
| 2.1 |
Commencement
of Participation.
Each Eligible Employee shall become a Participant as of the date
on which
he or she is designated as an Eligible Employee. Prior to commencement
of
participation in the Plan, each Participant shall be required to
complete
a Participation Agreement designating the form and timing of the
distribution of his or her Accounts. If
an Eligible Employee is participating in the Plan in 2005 or 2006
and has
not previously designated the form and timing of the distribution
of his
or her Accounts or
desires to modify a previously-filed distribution election,
he or she must make or modify such an election and file it with the
Administrator on or before December 31, 2006; provided, however,
that a
Participant may not file a modified payment election in 2006 that
has the
effect of deferring payment of amounts the Participant would otherwise
receive in 2006 or cause payments to be made in 2006 that would otherwise
be made subsequent to 2006.
|
If
a
Participant becomes eligible to participate in the Xxxxxxxxxx Realty Investors
Supplemental Executive Retirement Plan (“SERP”), the Participant will not be
eligible to receive a supplemental Restoration Benefit under this
Plan.
********
Article
III - Retirement
Restoration Benefit
| 3.1 |
Employer
Credits.
|
| (a) |
The
Employer shall credit to the Account of each Participant an amount
each
year designed to provide the Participant a benefit equal to the additional
retirement benefit he or she would have received under the Pension
Plan if
such benefit were determined under the Pension Plan’s Defined Benefit
Formula in effect December 31, 2001, but calculated applying the
definition of Earnings contained herein.
|
| (b) |
The
amount credited each Plan Year to the Account of a Participant shall
be
calculated as an actuarially determined level percentage of the
Participant’s projected Earnings that amortizes the unfunded present value
of the Restoration Benefit described below over the period remaining
until
the Participant attains Retirement Age. The Restoration Benefit shall
be
equal to the excess of:
|
| (i) |
the
projected retirement benefit to which the Participant would have
been
entitled at Retirement Age if such benefit were calculated under
the
Pension Plan’s Defined Benefit Formula in effect December 31, 2001, but
applying the definition of Earnings contained herein;
over
|
| (ii) |
the
projected retirement benefit payable to the Participant at Retirement
Age
under the Pension Plan’s Cash Balance Formula in effect April 1,
2002.
|
| 3.2 |
Last
Day Requirement.
A
Participant must be employed on the last day of the Plan Year in
order to
be eligible to receive an additional amount credited to his or her
Account
in a given Plan Year.
|
| 3.3 |
Calculation
of Employer Credits.
Present value assumptions regarding cost of living increases, salary
scale, discount rate, interest credits and any other assumptions
as may
reasonably be necessary for purposes of calculating the amount to
be
credited to a Participant’s Account each Plan Year shall be determined by
the Administrator.
|
| 3.4 |
Time
of Contributions.
Employer funds set aside in order to facilitate the payments of benefits
under this Plan in accordance with Section 8.2 shall be transferred
to the
Trust at such time as the Employer shall determine.
|
| 3.5 |
Withholding.
From time to time, the Employer shall withhold from the Participant’s cash
Earnings, such Participant’s share of taxes under the Federal Insurance
Contributions Act (“FICA”) and other applicable taxes that are required to
be withheld with respect to Employer Credits (and to the extent required
under regulations, income attributable thereto) as they vest and
become
subject to FICA taxes and other withholding (collectively, “Withholding
Requirements”). To
the extent that there is insufficient remaining cash Earnings to
satisfy
all applicable Withholding Requirements as they come due, the Employer
reserves the right to reduce a Participant’s Deferrals under the
Xxxxxxxxxx Realty Investors Deferred Compensation Plan to the extent
necessary to satisfy such Withholding Requirements.
In
the event there is insufficient cash Earnings to satisfy all applicable
Withholding Requirements as they come due, even
after reducing a Participant’s Deferrals, such
Participant shall be obligated to remit payment to the Employer,
in such
form as is acceptable to the Employer, sufficient to satisfy any
remaining
Withholding Requirements.
|
| 3.6 |
Participation
in Xxxxxxxxxx SERP.
If a Participant becomes eligible to participate in the Xxxxxxxxxx
Realty
Investors Supplemental Executive Retirement Plan (“SERP”), the Participant
will not be eligible to receive a supplemental restoration benefit
under
this Plan. In such event, the amount credited to the Participant’s SERP
account upon his or her commencement of participation in the SERP
shall
equal the amount, if any, credited to his or her Account in this
Plan
immediately prior to such commencement of
participation.
|
********
Article
IV - Vesting
| 4.1 |
Vesting
of Account.
A
Participant’s Account shall be 0% vested until a Participant has completed
five (5) Vesting Years of Service at which time he or she shall be
100%
vested.
|
| 4.2 |
Vesting
in Event of Retirement, Disability, or Death.
|
| (a) |
A
Participant shall be fully vested in the amounts credited to his
or her
Account if the Participant retires after attaining Retirement
Age.
|
| (b) |
A
Participant who separates from service due to Disability shall be
fully
vested in the amounts credited to his or her
Account.
|
| (c) |
A
Participant who separates from service due to death shall be fully
vested
in the amounts credited to his or her
Account.
|
| 4.3 |
Amounts
Not Vested.
Any amounts credited to a Participant's Account that are not vested
at the
time of his or her separation from service with the Employer for
a reason
other than Retirement, Disability, or death shall be
forfeited.
|
********
Article
V - Accounts
| 5.1 |
Bookkeeping
Accounts.
The Administrator shall establish and maintain a bookkeeping account
in
the name of each Participant.
|
| 5.2 |
Adjustment
and Crediting of Accounts.
|
| (a) |
The
Administrator shall adjust the amounts credited to each Participant’s
Account to reflect Employer Credits, distributions, interest, and
any
other appropriate adjustments. Such adjustments shall be made as
frequently as is administratively necessary in the discretion of
the
Administrator.
|
| (b) |
The
interest credited to a Participant’s Account shall be a fixed rate of
return assumption equal to seven and one-half percent (7.5%). The
rate of
return assumption may be changed on a prospective basis by the
Administrator in its discretion.
|
| 5.3 |
Investment
of Trust Assets. Employer
contributions or funds set aside in order to facilitate the payments
of
benefits under this Plan in accordance with Article VIII may, in
the sole
discretion of the Employer, be set aside in a Trust in order to facilitate
the payments of benefits under this Plan. Any such Trust assets shall
be
invested in accordance with the terms of the applicable Trust Agreement.
Under
no circumstances shall any Participant have any preferential or secured
right to or interest in any assets of such Trust, and the rights
of each
Participant (and if applicable, any beneficiary or survivor annuitant)
shall remain that of a general
creditor.
|
| 5.4 |
Forfeitures.
Excess Employer contributions or funds held in the Trust resulting
from
forfeiture of amounts credited to a Participant's Account shall continue
to be held in the Trust and invested at the discretion of the Employer.
Such amounts may be used to reduce succeeding Employer contributions
to
the Trust made for the purpose of funding the benefits due under
this
Plan. If no further Employer Contributions will be made, then such
forfeitures shall be returned to the
Employer.
|
********
Article
VI - Distributions
| 6.1 |
Entitlement
to Distribution.
A
Participant shall be entitled to distribution due to separation from
service on account of death, Disability, Early Retirement, Retirement
or
any other reason, provided the Participant is vested in his
Account.
|
| 6.2 |
Distribution
Election.
|
| (a) |
General
Rule.
Distribution of the vested balance of a Participant’s Account shall be
made in accordance with his or her election which indicates the
Participant’s choice with respect to the form and timing of his or her
distribution among the options available under Sections 6.3 and 6.4
hereof. Such distribution elections must be made at the time the
Participant completes his or her initial Participation Agreement
in
accordance with Section 2.1. A Participant may modify his or her
previously-made elections relating to the time and form of distribution
in
accordance with Section 6.2(b). Notwithstanding the preceding,
if
an Eligible Employee is participating in the Plan in 2005 or 2006
and has
not previously designated the form and timing of the distribution
of his
or her Accounts or desires to modify a previously-filed distribution
election, he or she must make or modify such an election, as the
case may
be, and file it with the Administrator on or before December 31,
2006;
provided, however, that a Participant may not file a modified payment
election in 2006 that has the effect of deferring payment of amounts
the
Participant would otherwise receive in 2006 or cause payments to
be made
in 2006 that would otherwise be made subsequent to 2006. The elections
referred to in the immediately preceding sentence shall not be required
to
meet the requirements of Section
6.2(b).
|
| (b) |
Modification
to the Time or Form of Distribution.
Except as may be permitted under 6.2(a) hereof, any election by a
Participant to modify a previously-filed distribution election is
ineffective unless all of the following requirements are
satisfied:
|
| (i) |
Such
modification may not be effective for at least twelve (12) months
after
the date on which the modification is
made.
|
| (ii) |
Except
in the case of modifications relating to distributions on account
of death
or Disability, the modification must provide that payment will not
commence for at least five (5) years from the date payment would
otherwise
have been made or commenced.
|
| (iii) |
A
modification related to a distribution to be made at a specified
time or
under a fixed schedule may not be made less than twelve (12) months
prior
to the date of the first otherwise scheduled
payment.
|
| (iv) |
Such
modification may not permit acceleration of the time or schedule
of any
payment under the Plan, except as may be permitted pursuant to applicable
Treasury Regulations.
|
| 6.3 |
Form
of Payment.
A
Participant entitled to distribution shall receive such distribution
in
one of the following forms, as previously elected by the Participant
in
accordance with Section 6.2, and commencing in accordance with Section
6.4: (i) a single life annuity; (ii) a joint and 50%, 75% or 100%
survivor
annuity; (iii) a ten-year certain and life annuity; (iv) a five-year
certain and life annuity; and (v) one lump sum. If payment is to
be made
in the form of an annuity, the amount payable to a Participant (and
if
applicable, the survivor annuitant) as an annuity shall be determined,
in
the sole discretion of the Administrator, by reference to a commercial
annuity which could be purchased from an insurer with the Participant's
vested Account at the time such payments are to commence. Under no
circumstances shall the Participant have any preferential or secured
right
to or interest in any annuity contract purchased from an insurer
by the
Employer or Trustee, and the rights of such Participant (and if
applicable, the survivor annuitant) shall remain that of a general
creditor.
|
| 6.4 |
Commencement
of Payment.
|
| (a) |
For
purposes of this Section 6.4, the “Earliest Distribution Date” shall mean
the earliest date on which distribution could be made or commence
to the
Participant under the Pension Plan, determined with regard to each
Participant as of the date the Participant commenced participation
under
this Plan, without regard to any applicable amendments to the Pension
Plan
effective subsequent to the date the Participant commenced participation
under this Plan.
|
| (b) |
Subject
to paragraph (c) of this Section 6.4, payment to a Participant shall
be
made or commence on the Earliest Distribution Date; provided, however,
that the Participant may elect, in accordance with Section 6.2, to
defer
payment to a date subsequent to the Earliest Distribution Date.
|
| (c) |
Notwithstanding
anything contained herein to the contrary, if a Participant is a
Key
Employee and separates from service for a reason other than death
or
Disability, such Participant’s distribution may not commence earlier than
six (6) months from the date of his or her separation from service.
Any
payment that would have been made within six (6) months of the
Participant’s separation from service without regard to the foregoing
sentence shall instead be made on the first day of the month following
the
date that is six (6) months from the date on which the Participant
separated from Service.
|
| 6.5 |
Minimum
Distribution.
Notwithstanding any provision to the contrary, but subject to Section
6.4(c), if the balance of a Participant's Account at the time of
a
termination due to Retirement or Disability is less than $50,000,
then the
Participant shall be paid his or her benefits as a single lump sum
thirty
(30) days following the Participant’s separation from service.
|
********
Article
VII - Beneficiaries
| 7.1 |
Beneficiaries.
|
| (a) |
Each
Participant may from time to time designate one or more persons,
entities,
or his or her estate as his or her beneficiary under the Plan. Such
designation shall be made on a form prescribed by the
Administrator.
|
| (b) |
A
Participant’s beneficiary shall be his spouse, as such individual is
determined under the Pension Plan. Notwithstanding the foregoing,
the
Participant may designate a beneficiary other than the spouse
if:
|
| (i) |
the
Participant has no spouse;
|
| (ii) |
the
spouse cannot be located; or
|
| (iii) |
the
spouse consents in accordance with Subsection (c)
below.
|
| (c) |
In
the case of a married Participant or former Participant, the designation
of a non-spouse as beneficiary shall be valid only
if:
|
| (i) |
the
spouse consents in writing to the designation;
|
| (ii) |
the
designation specifies the beneficiary and may not be changed without
spousal consent (or the spouse’s consent expressly permits designations by
the Participant without any requirement of further spousal consent);
and
|
| (iii) |
the
spouse’s consent acknowledges the effect of the election. Each Participant
may from time to time designate one or more persons, entities
or his or her estate as his or her beneficiary under the Plan. Such
designation shall be
made on a form prescribed by the
Administrator.
|
| 7.2 |
Change
of Beneficiary Designation.
Each Participant may, at any time and from time to time, change any
previous beneficiary designation, provided the requirements of Section
7.1(b) or (c) are satisfied, if applicable, by amending his or her
previous designation on a form prescribed by the
Administrator.
|
| 7.3 |
Determination
of Beneficiary.
|
| (a) |
If
the beneficiary does not survive the Participant (or is otherwise
unavailable to receive payment), if the beneficiary does not survive
until
the final payment is made or if no beneficiary is validly designated,
then
the amounts payable under this Plan (or any remaining amount, as
the case
may be) shall be paid to the Participant's designated contingent
beneficiary, if any, and, if none, to the Participant’s surviving spouse,
if any, and if none, to his or her surviving issue per stirpes, if
any,
and, if none, to his or her estate and such person shall be deemed
to be a
beneficiary hereunder. (For purposes of this Article, a per stirpes
distribution to surviving issue means a distribution to such issue
as
representatives of the branches of the descendants of such Participant;
equal shares are allotted for each living child and for the descendants
as
a group of each deceased child of the deceased Participant).
|
| (b) |
If
more than one person is the beneficiary of a deceased Participant,
each
such person shall receive a pro rata share of any death benefit payable
unless otherwise designated on the applicable form.
|
| (c) |
If
a beneficiary who is receiving benefits dies, all benefits that were
payable to such beneficiary shall then be payable to the estate of
that
beneficiary.
|
| (d) |
If
the Administrator has any doubt as to the proper Beneficiary to receive
payments hereunder, the Employer shall have the right to withhold
such
payments until the matter is finally adjudicated. However, any payment
made by the Employer, in good faith and in accordance with this Plan,
shall fully discharge the Employer from all further obligations with
respect to that payment.
|
| 7.4 |
Lost
Beneficiary.
|
| (a) |
All
Participants and beneficiaries shall have the obligation to keep
the
Administrator informed of their current address until such time as
all
benefits due have been paid.
|
| (b) |
If
a Participant or beneficiary cannot be located by the Administrator
exercising due diligence, then, in its sole discretion, the Administrator
may presume that the Participant or beneficiary is deceased for purposes
of the Plan and all unpaid amounts (net of due diligence expenses)
owed to
the Participant or beneficiary shall be paid to his/her estate. Any
such
presumption of death shall be final, conclusive and binding on all
parties.
|
********
Article
VIII - Funding
| 8.1 |
Prohibition
Against Funding.
Benefits payable under this Plan shall be paid from the general assets
of
the Employer, or at the discretion of the Employer, from assets set
aside
in a trust for deferring the cost of providing the benefits due under
this
Plan; provided, however, that no person entitled to payment under
this
Plan shall have any claim, right, priority, security interest, or
other
interest in any fund, trust, account, or other asset of the Employer
that
may be looked to for such payment. The liability for the payment
of
benefits hereunder shall be evidenced only by this Plan and by the
existence of a bookkeeping accounts established and maintained by
the
Employer for purposes of this Plan. It is the express intention of
the
parties hereto that this arrangement shall be unfunded for tax purposes
and for purposes of Title I of the Employee Retirement Income Security
Act
of 1974, as amended.
|
| 8.2 |
Deposits
in Trust.
Notwithstanding Section 8.1, or any other provision of this Plan
to the
contrary, the Employer may deposit into the Trust any amounts it
deems
appropriate to pay the benefits under this Plan. The amounts so deposited
shall remain the general assets of the
Employer.
|
********
Article
IX - Claims
Administration
| 9.1 |
General.
In the event that a Participant or his or her beneficiary does not
receive
any Plan benefit that is claimed, such Participant or beneficiary
shall be
entitled to consideration and review as provided in this Article.
Such
consideration and review shall be conducted in a manner designed
to comply
with section 503 of the Employee Retirement Income Security Act of
1974,
as amended.
|
| 9.2 |
Claim
Review.
Upon receipt of any written claim for benefits, the Administrator
shall be
notified and shall give due consideration to the claim presented.
If the
claim is denied to any extent by the Administrator, the Administrator
shall furnish the claimant with a written notice setting forth (in
a
manner calculated to be understood by the
claimant):
|
| (a) |
the
specific reason or reasons for denial of the
claim;
|
| (b) |
a
specific reference to the Plan provisions on which the denial is
based;
|
| (c) |
a
description of any additional material or information necessary for
the
claimant to perfect the claim and an explanation of why such material
or
information is necessary; and
|
| (d) |
an
explanation of the provisions of this
Article.
|
| 9.3 |
Right
of Appeal.
A
claimant who has a claim denied under section 9.2 may appeal to the
Administrator for reconsideration of that claim. A request for
reconsideration under this section must be filed by written notice
within
sixty (60) days after receipt by the claimant of the notice of denial
under section 9.2.
|
| 9.4 |
Review
of Appeal.
Upon receipt of an appeal the Administrator shall promptly take action
to
give due consideration to the appeal. Such consideration may include
a
hearing of the parties involved, if the Administrator determines
such a
hearing is necessary. In preparing for this appeal, the claimant
shall be
given the right to review documents relevant to the benefit claim
and the
right to submit in writing a statement of issues and comments. After
consideration of the merits of the appeal, the Administrator shall
issue a
written decision which shall be binding on all parties. The decision
shall
be written in a manner calculated to be understood by the claimant
and
shall specifically state its reasons and pertinent Plan provisions
on
which it relies. The Administrator's decision shall be issued within
sixty
(60) days after the appeal is filed, except that if a hearing is
held the
decision may be issued within one hundred twenty (120) days after
the
appeal is filed.
|
| 9.5 |
Designation.
The Administrator may designate one or more of its members or any
other
person of its choosing to make any determination otherwise required
under
this Article.
|
********
Article
X - General
Provisions
| 10.1 |
Administrator.
|
| (a) |
The
Administrator is expressly empowered to deposit amounts into Trust(s)
in
accordance with this Plan; to interpret the Plan, and to determine
all
questions arising in the administration, interpretation and application
of
the Plan; to employ actuaries, accountants, counsel, and other persons
it
deems necessary in connection with the administration of the Plan;
to
request any information from the Employer it deems necessary to determine
whether the Employer would be considered insolvent or subject to
a
proceeding in bankruptcy; and to take all other necessary and proper
actions to fulfill its duties as
Administrator.
|
| (b) |
The
Administrator shall not be liable for any actions by it hereunder,
unless
due to its own negligence, willful misconduct or lack of good
faith.
|
| (c) |
The
Administrator shall be indemnified and saved harmless by the Employer
from
and against all personal liability to which it may be subject by
reason of
any act done or omitted to be done in its official capacity as
Administrator in good faith in the administration of the Plan and
Trust,
including all expenses reasonably incurred in its defense in the
event the
Employer fails to provide such defense upon the request of the
Administrator. The Administrator is relieved of all responsibility
in
connection with its duties hereunder to the fullest extent permitted
by
law, short of breach of duty to the
beneficiaries.
|
| 10.2 |
No
Assignment.
Benefits or payments under this Plan shall not be subject in any
manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of the Participant or the
Participant's beneficiary, whether voluntary or involuntary, and
any
attempt to so anticipate, alienate, sell, transfer, assign, pledge,
encumber, attach or garnish the same shall not be valid, nor shall
any
such benefit or payment be in any way liable for or subject to the
debts,
contracts, liabilities, engagement or torts of any Participant or
beneficiary, or any other person entitled to such benefit or payment
pursuant to the terms of this Plan, except to such extent as may
be
required by law. If any Participant or beneficiary or any other person
entitled to a benefit or payment pursuant to the terms of this Plan
becomes bankrupt or attempts to anticipate, alienate, sell, transfer,
assign, pledge, encumber, attach or garnish any benefit or payment
under
this Plan, in whole or in part, or if any attempt is made to subject
any
such benefit or payment, in whole or in part, to the debts, contracts,
liabilities, engagements or torts of the Participant or beneficiary
or any
other person entitled to any such benefit or payment pursuant to
the terms
of this Plan, then such benefit or payment, in the discretion of
the
Administrator, shall cease and terminate with respect to such Participant
or beneficiary, or any other such
person.
|
| 10.3 |
No
Employment Rights.
Participation in this Plan shall not be construed to confer upon
any
Participant the legal right to be retained in the employ of the Employer,
or give a Participant or beneficiary, or any other person, any right
to
any payment whatsoever, except to the extent of the benefits provided
for
hereunder.Each
Participant shall remain subject to discharge to the same extent
as if
this Plan had never been adopted.
|
| 10.4 |
Incompetence.
If the Administrator determines that any person to whom a benefit
is
payable under this Plan is incompetent by reason of physical or mental
disability, the Administrator shall have the power to cause the payments
becoming due to such person to be made to another for his or her
benefit
without responsibility of the Administrator or the Employer to see
to the
application of such payments. Any payment made pursuant to such power
shall, as to such payment, operate as a complete discharge of the
Employer, the Administrator and the
Trustee.
|
| 10.5 |
Identity.
If, at any time, any doubt exists as to the identity of any person
entitled to any payment hereunder or the amount or time of such payment,
the Administrator shall be entitled to hold such sum until such identity
or amount or time is determined or until an order of a court of competent
jurisdiction is obtained. The Administrator shall also be entitled
to pay
such sum into court in accordance with the appropriate rules of law.
Any
expenses incurred by the Employer, Administrator, and Trust incident
to
such proceeding or litigation shall be charged against the Account
of the
affected Participant.
|
| 10.6 |
Other
Benefits.
The benefits of each Participant or beneficiary hereunder shall be
in
addition to any benefits paid or payable to or on account of the
Participant or beneficiary under any other pension, disability, annuity
or
retirement plan or policy
whatsoever.
|
| 10.7 |
No
Liability.
No liability shall attach to or be incurred by any manager of the
Employer, Trustee or any Administrator under or by reason of the
terms,
conditions and provisions contained in this Plan, or for the acts
or
decisions taken or made thereunder or in connection therewith; and
as a
condition precedent to the establishment of this Plan or the receipt
of
benefits thereunder, or both, such liability, if any, is expressly
waived
and released by each Participant and by any and all persons claiming
under
or through any Participant or any other person. Such waiver and release
shall be conclusively evidenced by any act or participation in or
the
acceptance of benefits or the making of any election under this
Plan.
|
| 10.8 |
Expenses.
All expenses incurred in the administration of the Plan, whether
incurred
by the Employer or the Plan, shall be paid by the
Employer.
|
| 10.9 |
Insolvency.
Should the Employer be considered insolvent (as defined by the Trust),
the
Employer, through its Board and chief executive officer, shall give
immediate written notice of such to the Administrator of the Plan
and the
Trustee. Upon receipt of such notice, the Administrator or Trustee
shall
comply with the terms of the Trust.
|
| 10.10 |
Amendment.
The Employer, in its sole and unfettered discretion, may amend the Plan at
any time, provided,
however, that
any such amendment shall
not reduce, without the consent of a Participant,
a Participant's right to any amounts already credited to
his or her Account and provided further that such
amendment does not contravene the provisions of Section 409A of the
Code
and related guidance issued
thereunder.
|
| 10.11 |
Plan
Termination.
|
| (a) |
The
Employer may terminate the Plan upon occurrence of any one of the
following:
|
| (i) |
Within
twelve (12) months of the Employer’s dissolution taxed under Section 331
of the Code or with the approval of a bankruptcy court pursuant to
11
U.S.C. Section 503(b)(1)(A), provided that the amounts deferred under
the
Plan are included in the Participants’ gross income in the latest
of:
|
| (1) |
The
calendar year in which the Plan termination
occurs;
|
| (2) |
The
calendar year in which the amount is no longer subject to a substantial
risk of forfeiture; or
|
| (3) |
The
first calendar year in which the payment is administratively practicable.
|
| (ii) |
Within
the thirty (30) days preceding or the twelve (12) months following
a
Change in Control, provided all substantially similar arrangements
(within
the meaning of Section 409A of the Code and related guidance issued
thereunder) sponsored by the Employer are also terminated, so that
the
Participant and all participants under substantially similar arrangements
are required to receive all amounts of compensation deferred under
the
terminated arrangements within twelve (12) months of the date of
termination of the arrangements.
|
| (iii) |
At
the discretion of the Employer, provided that all of the following
requirements are satisfied:
|
| (1) |
All
arrangements sponsored by the Employer that would be aggregated with
any
terminated arrangement under Section 1.409A-1(c) if the same Participant
participated in all of the arrangements are terminated;
|
| (2) |
No
payments other than payments that would be payable under the terms
of the
arrangements if the termination had not occurred are made within
twelve
(12) months of the termination of the arrangements;
|
| (3) |
All
payments are made within twenty-four (24) months of the termination
of the
arrangements; and
|
| (4) |
The
Employer does not adopt a new arrangement that would be aggregated
with
any terminated arrangement under Section 1.409A-1(c) if the same
Participant participated in both arrangements, at any time within
five (5)
years following the date of termination of the
arrangement.
|
| (iv) |
Such
other events and conditions as the Commissioner of Internal Revenue
may
prescribe in generally applicable guidance published in the Internal
Revenue Bulletin.
|
| (b) |
A
Participant shall have a right to the vested portion of his or her
Account
in the event
of the termination of the Plan
|
| (c) |
Any
funds remaining in the Trust after termination of the Plan and
satisfaction of all liabilities to Participants and others, shall
be
returned to the Employer.
|
| 10.12 |
Employer
Determinations.
Any determinations, actions or decisions of the Employer (including
but
not limited to, Plan amendments and Plan termination) shall be made
by the
Board in accordance with its established procedures or by such other
individuals, groups or organizations that have been properly delegated
by
the Board to make such determination or
decision.
|
| 10.13 |
Construction.
All questions of interpretation, construction or application arising
under
or concerning the terms of this Plan shall be decided by the
Administrator, in its sole and final discretion, whose decision shall
be
final, binding and conclusive upon all
persons.
|
| 10.14 |
Governing
Law.
This Plan shall be governed by, construed and administered in accordance
with the applicable provisions of the Employee Retirement Income
Security
Act of 1974, as amended, Code Section 409A, and any other applicable
federal law, provided, however, that to the extent not preempted
by
federal law this Plan shall be governed by, construed and administered
under the laws of the State of Texas, other than its laws respecting
choice of law.
|
| 10.15 |
Severability.
If any provision of this Plan is held invalid or unenforceable, its
invalidity or unenforceability shall not affect any other provision
of
this Plan and this Plan shall be construed and enforced as if such
provision had not been included therein. If the inclusion of any
Employee
(or Employees) as a Participant under this Plan would cause the Plan
to
fail to be maintained solely for a select group of highly compensated
or
management employees, then the Plan shall be severed with respect
to such
Employee or Employees who shall be considered to be participating
in a
separate arrangement.
|
| 10.16 |
Entire
Agreement.
This
instrument contains the entire terms of the Plan and supersedes
any prior understandings or written documents which have heretofore
set
forth the terms of the Plan and/or any oral agreements between the
Employer and any of the Participants respecting the within subject
matter.
No
modification, amendment, change, or discharge of any term or provision
of
this Plan shall be valid or binding unless the same is in writing
and
signed by a duly authorized officer of the Employer.
|
| 10.17 |
Headings.
The Article headings contained herein are inserted only as a matter
of
convenience and for reference and in no way define, limit, enlarge
or
describe the scope or intent of this Plan nor in any way shall they
affect
this Plan or the construction of any provision
thereof.
|
| 10.18 |
Terms.
Capitalized terms shall have meanings as defined herein. Singular
nouns
shall be read as plural, masculine pronouns shall be read as feminine,
and
vice versa, as appropriate.
|
********
[Signature
page follows]
IN
WITNESS WHEREOF, XXXXXXXXXX REALTY INVESTORS has caused this instrument to
be
executed by its duly authorized officer, effective as of January 1, 2005, or
as
otherwise provided herein.
XXXXXXXXXX
REALTY INVESTORS
By: /S/Xxxxxxx
Xxxxxxxx
Name: Xxxxxxx
Xxxxxxxx
Title: V.P.
Human Resources
Date: August
4,
2006
