PHILIPP BROTHERS CHEMICALS, INC.
RETIREMENT INCOME AND
DEFERRED COMPENSATION PLAN TRUST
(a) This Agreement made as of this 1st day of January, 1994 by and
between PHILIPP BROTHERS CHEMICALS, INC. ("Company") on its own behalf and on
behalf of its wholly owned subsidiaries CP CHEMICALS, INC. and PHIBRO-TECH,
INC., and XXXXXX X. HAMBURG ("Trustee);
(b) WHEREAS, Company has adopted the non-qualified deferred
compensation Plan as listed in Appendix A;
(c) WHEREAS, Company has incurred or expects to incur liability
under the terms of such Plan with respect to the individuals participating in
such Plan;
(d) WHEREAS, Company wishes to establish a trust (hereinafter called
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of Company's creditors in the event of Company's
Insolvency, as herein defined, until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in the Plan;
(e) WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the status of the
Plan as an unfunded plan maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of 1974;
(f) WHEREAS, it is the intention of Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under the Plan;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows: Section 1.
Establishment of Trust.
Section 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust the sum of One
Hundred ($100) Dollars, which shall become the principal of the Trust to be
held, administered and disposed of by Trustee as provided in this Trust
Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is
the grantor, within the meaning of subpart E, part
I, subchapter J, chapter 1, subtitle A of the Internal Revenue Code of 1986, as
amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of Company and shall be used
exclusively for the uses and purposes of Plan participants and general creditors
as herein set forth. Plan participants and their beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plan and this Trust Agreement shall be mere
unsecured contractual rights of Plan participants and their beneficiaries
against Company. Any assets held by the Trust will be subject to the claims of
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company shall make such deposits of cash in trust with the
Trustee as are appropriate or required under the terms of and, in conformity
with the Plan, and Company, in its sole discretion, may at any time, or from
time to time, make "additional" deposits of cash or other property in trust with
Trustee to augment the principal to be held, administered and disposed of by
Trustee as provided in this Trust Agreement. Neither Trustee nor any Plan
participant or beneficiary shall have any right to compel such "additional"
deposits.
Section 2. Payments to Plan Participants and Their
Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), that provides a formula or other
instructions reasonably acceptable to Trustee for determining the amounts so
payable, the form in which such amount is to be paid as provided for (or
available) under the Plan, and the time of commencement for payment of such
amounts. Except as otherwise provided herein, Trustee shall make payments to the
Plan participants and their beneficiaries in accordance with such Payment
Schedule. The Trustee shall make provision for the reporting and withholding of
any federal, state or local taxes that may be required to be withheld with
respect to the payment of benefits pursuant to the terms of the Plan and shall
pay amounts withheld to the appropriate taxing authorities or determine that
such amounts have been reported, withheld and paid by Company.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by Company or such
party as it shall designate under the Plan, and any claim for such benefits
shall be considered and reviewed under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the terms of the
Plan. Company shall notify Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plan, Company shall make the balance of each such payment as it
falls due. Trustee shall notify Company where principal and earnings are not
sufficient.
Section 3. Trustee Responsibility Regarding Payments to
Trust Beneficiary When Company Is Insolvent.
(a) Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is Insolvent. Company shall be considered
"Insolvent" for purposes of this Trust Agreement if (i) Company is unable to pay
its debts as they become due, or (ii) Company is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as provided
in Section 1(d) hereof, the principal and income of the Trust shall be subject
to claims of general creditors of Company under federal and state law as set
forth below.
(1) The Board of Directors and the Chief Executive Officer of
Company shall have the duty to inform Trustee in writing of Company's
Insolvency. If a person claiming to be a creditor of Company alleges in writing
to Trustee that Company has become Insolvent, Trustee shall determine whether
Company is Insolvent and, pending such determination, Trustee shall discontinue
payment of benefits to Plan participants or their beneficiaries.
(2) Unless Trustee has actual knowledge of Company's Insolvency,
or has received notice from Company or a person claiming to be a creditor
alleging that Company is Insolvent, Trustee shall have no duty to inquire
whether Company is Insolvent. Trustee may in all events rely on such evidence
concerning Company's solvency as may be furnished to Trustee and that provides
Trustee with a reasonable basis for making a determination concerning Company's
solvency.
(3) If at any time Trustee has determined that Company is
Insolvent, Trustee shall discontinue payments to Plan participants or their
beneficiaries and shall hold the assets of the Trust for the benefit of
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Plan participants or their beneficiaries to pursue their
rights as general creditors of Company with respect to benefits due under the
Plan or otherwise.
(4) Trustee shall resume the payment of benefits to Plan
participants or their beneficiaries in accordance with Section 2 of this Trust
Agreement only after Trustee has determined that Company is not Insolvent (or is
no longer Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to Section 3(b)
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plan for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by Company in lieu of the payments provided
for hereunder during any such period of discontinuance.
Section 4. Payments to Company.
Except as provided in Section 3 hereof, Company shall have no right
or power to direct Trustee to return to Company or to divert to others any of
the Trust assets before all payment of benefits have been made to Plan
participants and their beneficiaries pursuant to the terms of the Plan.
Section 5. Investment Authority.
In no event may Trustee invest in securities or obligations issued
by Company, other than a de minimis amount held in common investment vehicles in
which Trustee invests. All rights associated with assets of the Trust shall be
exercised by Trustee or the person designated by Trustee, and shall in no event
be exercisable by or rest with Plan participants.
Section 6. Disposition of Income.
During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested.
Section 7. Accounting by Trustee.
(a) Trustee shall establish and maintain a separate Deferred
Compensation Account in the name of each Plan participant who elects an Annual
Deferral Amount in accordance with Section 2.01 of the Plan. There shall be
credited to said Account(s) all of such Amounts, together with all Company
Matching Contribution Amount (s) (if any), contributed on behalf of each such
Plan participant in accordance with Section 2.03 of the Plan. Within thirty (30)
days after the end of each Plan Year, Trustee shall prepare, and deliver to
Company for distribution to all Plan participants, a statement of benefits in
the name of each Plan
participant, reflecting the value of said participant's Deferred Compensation
Account (if any), as well as the participant's Retirement Income Benefit (if
any) earned for the previous Plan Year, and the total of said participant's
accrued benefit, to date.
(b) Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions required to be
made, including such specific records as shall be agreed upon in writing between
Company and Trustee. Within sixty (60) days following the close of each calendar
year and within thirty (30) days after the removal or resignation of Trustee,
Trustee shall deliver to Company a written account of its administration of the
Trust during such year or during the period from the close of the last preceding
year to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be.
Section 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by Company which is contemplated by, and
in conformity with, the terms of the Plan or this Trust and is given in writing
by Company. In the event of a dispute between Company and a party, Trustee may
apply to a court of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising in
connection with this Trust, Company agrees to indemnify Trustee against
Trustee's costs, expenses and liabilities (including, without limitation,
reasonable attorneys' fees and expenses) relating thereto and to be primarily
liable for such payments. If Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (who may also be counsel
for Company generally) with respect to any of its duties or obligations
hereunder.
(d) Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals
as reasonably required to assist it in performing any of its duties or
obligations hereunder.
(e) Trustee shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
Trustee shall have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding any powers granted to Trustee pursuant to this
Trust Agreement or to applicable law, Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
Section 9. No Compensation to Trustee.
Trustee shall serve without compensation; however, Company shall pay
all administrative and Trustee's expenses. If not so paid, the expenses shall be
paid from the Trust.
Section 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to Company,
which shall be effective sixty (60) days after receipt of such notice unless
Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on fifteen (15) days notice or
upon shorter notice accepted by Trustee.
(c) Upon resignation or removal of Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within ten (10) days after receipt of
notice of resignation, removal or transfer, unless Company extends the time
limit.
(d) If Trustee dies resigns or is removed, his successor shall be
XXXXXX X. CHILL, and if XXXXXX X. CHILL dies, resigns or is removed, a successor
may be appointed, in accordance with Section 11 hereof, within fifteen (15) days
after death, or by the effective date of resignation or removal under
paragraph(s) (a) [or (b)] of this section, as the case may be. If no such
appointment has been made, Trustee (or a representative of Plan participants in
the event of Trustee's death) may apply to a court of competent jurisdiction for
appointment of a successor or for instructions.
All expenses of Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Section 11. Appointment of Successor.
If Trustee resigns [or is removed] in accordance with Section 10(a)
[or b] hereof; (a) either Company may appoint a successor; or
(b) In the event Company fails to do so within a reasonable time
Trustee may appoint a successor.
(c) Upon a Change of Control as defined herein, Trustee may not be
removed for five (5) years.
(d) In either event the appointment of a successor Trustee shall be
effective when accepted in writing by the new Trustee. The new Trustee shall
have all the rights and powers of the former Trustee, including ownership rights
in Trust assets. The former Trustee shall execute any instrument necessary or
reasonably requested by the successor Trustee to evidence the transfer.
(e) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by Trustee and Company. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Plan.
(b) The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plan. Upon termination of the Trust any assets remaining in
the Trust shall be returned to Company.
(c) Sections 6, 7, 8 and 10 of this Trust Agreement may not be
amended by Company for five (5) years following a Change of Control, as defined
herein.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to Plan participants and their beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) For purposes of this Trust, Change of Control shall mean: the
purchase or other acquisition by any person, entity or group of persons, within
the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934
("Act"), or any comparable successor provisions, of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Act) of fifty (50%) percent or
more of either the outstanding shares of common stock or the combined voting
securities entitled to vote generally, or the approval by the stockholders of
Company of a reorganization, merger, or consolidation, in each case, with
respect to which persons who were stockholders of Company immediately prior to
such reorganization, merger or consolidation do not, immediately thereafter, own
more than fifty (50%) percent of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated Company's then outstanding securities, or a liquidation or
dissolution of Company or the sale of all or substantially all of Company's
assets").
Section 14. Effective Date.
The effective date of this Trust Agreement shall be January 1, 1994.
IN WITNESS WHEREOF, this Agreement has been executed by the Trustee
and on behalf of Company by a duly authorized officer as of the date first above
written.
PHILIPP BROTHERS CHEMICALS, INC.
------------------------------
By: /s/ Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Hamburg
------------------------------
Trustee
PHILIPP BROTHERS CHEMICALS, INC.
RETIREMENT INCOME AND
DEFERRED COMPENSATION PLAN
--------------------------------------------------------------------------------
PREAMBLE
This Plan is an unfunded deferred compensation arrangement for a select group of
management or highly compensated personnel.
ARTICLE 1. DEFINITIONS
Section 1.01
"Company" means PHILIPP BROTHERS CHEMICALS, INC., a New York Corporation, CP
CHEMICALS, INC., a New Jersey Corporation, and PHIBRO-TECH, INC., a Delaware
Corporation and their corporate successors.
Section 1.02
"Board" means the Board of Directors of Company. Such terms may be
used interchangeably.
Section 1.03
"Committee" means the Deferred Compensation Plan Committee.
Section 1.04
"Plan" means the Deferred Compensation Plan as it may be amended from time to
time. The calendar year shall be the Plan Year.
Section 1.05
"Effective Date of Plan" means March 18, 1994.
Section 1.06
"Employee" means an employee of the Company.
Section 1.07
"Annual Compensation" shall mean the regular compensation paid to an employee in
a calendar year, exclusive of any bonus or other incentive compensation.
Section 1.08
"Base Salary Amount" shall be a minimum amount of Annual
Compensation, determined by the Committee at the beginning of each
Plan Year, which must be earned by an employee in order for said employee to be
eligible to participate in the Plan during said Plan Year. The Base Salary
Amount for the calendar years 1993 and 1994
shall be $150,000. In no event shall said amount be less than $150,000 in any
subsequent calendar year.
Section 1.09
"Eligible Compensation" shall mean the maximum amount of a Participant's Annual
Compensation that may be taken into account in determining his Retirement Income
Benefits hereunder. For the calendar year 1993, Eligible Compensation shall be
$235,840; that amount shall be increased 6% each calendar year thereafter that
the Plan is in force and effect.
Section 1.10
"Eligible Employee" means an employee who has not attained the age of fifty-five
(55), and whose Annual Compensation in a Plan Year is at least equal to the Base
Salary Amount in effect for such year.
Section 1.11
"Participants" means all Eligible Employees who participate in the Plan, or
persons who were such at the time of their retirement, death, disability or
resignation and who retain, or whose beneficiaries obtain, benefits under the
Plan in accordance with its terms. An employee shall be deemed to have been a
Participant in the Plan during each year of his employment on or after the
Effective Date in which he was eligible to earn a Retirement Income Benefit
hereunder. A Participant will remain in the Plan during any period in which he
is on an approved leave of absence, or is on disability leave provided he is
then receiving disability payments paid for by Company.
Section 1.12
"Normal Retirement Date" means the date on which a Participant attains the age
of sixty-five (65) years and has completed at least ten (10) years of service
with the Company. "Early Retirement Date" means the date on which the employment
of a Participant terminates, provided he has completed at least ten (10) years
of service with the Company and has attained the age of fifty-five (55) years.
Section 1.13
"Benefit Percentage" means that percentage (if any) declared by the Committee
with respect to a Plan Year, which when multiplied by a Participant's Eligible
Compensation shall determine the Annual Percentage Accrual.
Section 1.14
"Annual Percentage Accrual" shall mean the amount, if any, of the Eligible
Compensation earned by a Participant in a Plan Year, with respect to which the
Committee shall determine to award a
Retirement Income Benefit for said year. Said determination shall be made during
the first quarter of the immediately following year with respect to Participants
who are employed by the Company at the time said determination is made. Thus,
for example, the Committee will determine the 1993 Annual Percentage Accrual, if
any, during the first quarter of 1994.
Section 1.15
"Retirement Income Benefit". A Participant's Retirement Income Benefit shall be
equal to the sum of the Annual Percentage Accrual(s), if any, declared by the
Committee during the years that said Participant participated in the Plan.
Within thirty (30) days after the end of each Plan Year, each Participant shall
receive a statement of benefits reflecting the Participant's Retirement Income
Benefit (if any) earned for the previous Plan Year, as well as the total of said
Participant's accrued benefit, to date.
Section 1.16
"Survivor's Income Benefit" is the benefit payable to the Beneficiary of a
Participant who dies before having retired from the Company.
Section 1.17
"Deferred Compensation Benefit" is an optional benefit which a Participant may
elect, prior to the start of each Plan Year, (except the first Plan Year, in
which such election must be made within thirty (30) days of the Effective Date
with respect to Compensation payable to said Participant for that period in 1994
subsequent to the date of such election) and which the Company may (partially)
match each year.
Section 1.18
"Deferred Compensation Account" means the account maintained by the Trustee in
the name of each Participant.
Section 1.19
"Beneficiary" means the person or persons a Participant shall have designated to
succeed to his right to receive payments hereunder in the event of his death. In
case of a failure to designate a beneficiary, or the death of a designated
beneficiary without a designated successor, such payments shall be made to the
Participant's estate. No designation of beneficiaries shall be valid unless in
writing signed by the Participant, dated, and filed with both the Committee and
the Trustee. Beneficiaries may be changed without the consent of any prior
beneficiaries.
Section 1.20
"Trust" means the PHILIPP BROTHERS CHEMICALS, INC. RETIREMENT INCOME AND
DEFERRED COMPENSATION PLAN TRUST created as of January 1, 1994. Such Trust and
any other trust which may be created by Company to assist it in meeting its
obligations hereunder, shall conform to the terms of the model trust as
described in Revenue Procedure 92-64.
Section 1.21
"Trustee" means the Trustee of the Trust.
Section 1.22
The terms hereof shall be read in the plural or singular, or masculine or
feminine, as the case may be, whenever appropriate.
ARTICLE II. ANNUAL DEFERRALS
Section 2.01.
During the first Plan Year, each Participant shall notify Company within thirty
(30) days of the Effective Date, on a form provided by company, of the portion,
if any, of said Participants' Base Salary Amount in excess of $150,000 payable
to said Participant for the period in 1994 subsequent to the date of such
election, that said Participant elects to defer (the "1994 Deferral Amount").
Thereafter, on or before the fifteenth (15th) day of the month preceding the
first month of each twelve (12) month period commencing January 1, 1995 during
his employment, each Participant shall notify Company, on a form provided by
Company, of the portion, if any, of said Participant's Base Salary Amount in
excess of $150,000 payable to said Participant in the next calendar year that
said Participant elects to defer (hereinafter "Annual Deferral"). The election,
once made, shall be irrevocable. However, a Participant who has received a
Hardship Distribution as provided for in Section 8.01, shall not be eligible to
elect an Annual Deferral until after the close of the calendar year following
the date of such Hardship Distribution.
Section 2.02
The amount of the Annual Deferral elected by a Participant in any calendar year
may not be less than $3,000.00 and may not exceed $20,000.00.
Section 2.03
If a Participant who has elected a 1994 Deferral Amount or in any
Plan Year after 1994 has elected an Annual Deferral is a member of the Company's
Qualified Section 401(k) Plan and has elected to contribute the maximum
deductible amount to said Plan in 1994 or any subsequent calendar year, Company
will match the first $3,000 which said Participant has elected to defer
hereunder during said calendar year (hereinafter "Company Matching Contribution
Amount"). The Company shall withhold, each quarter, or such other period
determined by Company, from the compensation payable to said Participant,
one-quarter (1/4), or such other proportionate amount of said Participant's
Annual Deferral.
Section 2.04
The Annual Deferral Amount and the Company Matching Contribution Amount, if any,
shall be credited to a Participant's Deferred
Compensation Account at the time said amounts are withheld from the
Participant's salary and/or paid by Company, as the case may be.
Section 2.05
Notwithstanding the provisions of Section 2.01, on or before the first (1st) day
of the month preceding the first month of each twelve (12) month period
commencing January 1, 1995, Company may determine, in it's sole discretion, to
advise each Participant that no Annual Deferral will be permitted in the next
calendar year.
ARTICLE III. RETIREMENT BENEFITS
Section 3.01
"Normal Retirement Benefit". A Participant who retires on or after his Normal
Retirement Date shall be paid a monthly retirement benefit in an amount
determined by dividing his Retirement Income Benefit by twelve (12).
Section 3.02
"Early Retirement Benefit". Upon the retirement of a Participant who shall have
attained his Early Retirement Date, he shall be paid a monthly retirement
benefit in an amount determined by dividing his Retirement Income Benefit, by
twelve (12), reduced as follows:
REDUCTION FOR EACH REDUCTION FOR EACH
AGE AT RETIREMENT MONTH LESS THAN AGE 65 YEAR LESS THAN 65
Greater than 55
but less than 60 .1667% 2%
60 to 62 .0833% 1%
Greater than 62 0% 0%
Section 3.03
"Survivor's Income Benefit". If a Participant shall die during his employment
prior to having begun to receive any Retirement Income Benefits hereunder, his
Beneficiary shall be entitled to receive, in said Beneficiary's discretion, a
monthly death benefit in an amount equal to the greater of (i) the than value of
said Participant's Retirement Income Benefit, (hereinafter "Survivor's
Retirement Benefit") or (ii) an amount determined as follows:
Section 3.03.1. If said Participant died prior to attaining the age
of forty (40) years, an amount equal to three (3)times the Participant's Annual
Compensation at the time of death (annualized).
Section 3.03.2. If said Participant died after having attained the
age of forty (40) years but prior to having attained the age of fifty (50)
years, an amount equal to two (2) times the Participant's Annual Compensation at
the time of death (annualized).
Section 3.03.3. If said Participant died after having attained at
least the age of fifty (50) years, an amount equal to the Participant's Annual
Compensation at the time of death (annualized).
Section 3.03.4. The benefit determinable under Section 3.03.1,
3.03.2 or 3.03.3, as the case may be, is hereinafter referred to as the
"Annualized Benefit".
Section 3.05
"Forfeiture For Cause". Notwithstanding anything contained in the Plan to the
contrary, if, in the Committee's discretion, it is determined that a
Participant's employment be terminated for Cause, such Participant shall forfeit
all rights to any Retirement Income Benefit payable under the Plan. For purposes
of the foregoing, "Cause" shall mean any one or more of the following: (a) theft
or misappropriation of Company funds or assets, or intentionally damaging the
Company's assets; (b) falsification of Company records; (c) willful failure or
refusal to perform duties reasonably assigned; (d) conviction (including a
guilty plea) of a felony or misdemeanor which creates apprehension or insecurity
on the part of the Committee, other officers of the Company, customers or the
public in dealing with the Participant; or (e) acting either willfully or with
gross negligence in a disloyal manner or to the detriment of the Company's best
interest.
ARTICLE IV. PAYMENT OF BENEFITS
Section 4.01
"Retirement Income Benefit". The payment of a Participant's Retirement Income
Benefit shall commence on or about the first day of the month next following
thirty (30) days after his employment with the Company terminates, and shall be
payable on or about the first day of each subsequent month until a total of 180
such payments have been made. If said Participant shall die after having
received any of said payments and before having received the entire benefit to
which he is entitled, said payments shall continue to be made to his
Beneficiary.
Section 4.02
"Survivor's Income Benefit". The payment of a Participant's Survivor's Income
Benefit shall be made as follows:
Section 4.02.1. If his Beneficiary shall have elected to receive the
"Survivor's Retirement Benefit", payment of same shall commence, at the election
of said beneficiary, on or about the first day of the month next following
thirty (30) days after (a) the Participant's date of death, if the Participant
died after having attained his Early Retirement Date, on his Normal Retirement
Date, as the case may be, (b) the date on which the Participant would have
attained his Early Retirement Date if he died prior to his Early Retirement
Date, or (c) the date on which the Participant would have attained his Normal
Retirement Date if he died prior to his Normal Retirement Date, and shall
continue to be payable on or about the first day of each subsequent month until
a total of 180 such payments have been made.
Section 4.02.2. If his Beneficiary shall have elected to receive the
"Annualized Benefit", payment of same shall be made in that number of equal
monthly installments commencing on or about the first day of the month next
following thirty (30) days after the death of the Participant, determined as
follows:
(i) If Section 3.03.1 applies, thirty-six (36) months;
(ii) If Section 3.03.2 applies, twenty-four (24) months; and
(iii)If Section 3.03.3 applies, twelve (12) months.
ARTICLE V. FUNDING
Section 5.01
"Unfunded Character". Notwithstanding the fact that the Company has established
the Trust for the purpose of providing the benefits payable under the Plan, such
Trust, or the Company's assets, as the case may be, shall be subject to the
claims of the Company's general unsecured creditors. Any liability of the
Company to any person with respect to benefits payable under the Plan shall be
based solely upon such contractual obligations, if any, as shall be created by
the Plan, and shall give rise only to a claim against the general assets of the
Company. No such liability shall be deemed to be secured by any pledge or any
other encumbrance on any specific property of the Company. The Plan is not
intended to comply with the requirements of Section 401(a) of the Internal
Revenue Code of 1986, as amended, and is intended to be unfunded for tax
purposes and for purposes of Title I of ERISA.
Section 5.02
"Life Insurance". The Trust may apply for and become the owner and beneficiary
of a life insurance policy on the life of each Participant, so as to provide
some or all of the benefits hereunder. Accordingly, each Participant, as a
condition of participation in the Plan, may be required to submit to a physical
examination by the carrier issuing said policy, said examination to be paid for
by the Company. Any such policy which the Company may utilize to assure itself
of the funds to provide the benefits hereunder, shall not serve in any way as
security to a Participant for the Company's performance hereunder and shall
remain the sole property of the Trust. The rights accruing to a Participant or
any Beneficiary hereunder shall be solely those of an unsecured creditor of the
Company. Notwithstanding anything herein contained to the contrary, if a
Participant is not insurable at standard rates, the Committee shall have the
option to reduce (or eliminate, if said Participant is uninsurable) the Survivor
Benefit payable hereunder with respect to such Participant. Notice of any such
determination shall be delivered by the Committee to said Participant, in
writing, within thirty (30) days after said determination has been made, and
shall be final, conclusive, and binding on the Participant, and his heirs,
successors, assigns and beneficiary.
Section 5.03
Title to and beneficial ownership of any assets, whether cash or investments,
which the Trust may hold to pay any Plan benefits, shall at all times remain in
the Trustee and neither the Participants nor their designated Beneficiaries
shall have any property interest whatsoever therein.
Section 5.04
Payment of the Retirement Income Benefit payable under the Plan shall be
conditioned upon the Participant remaining in the employ of company at least
until he attains his Early Retirement Date. If a Participant's employment
terminates prior to his having attained his Early Retirement Date, (other than
on account of his death or permanent disability) he shall forfeit the Retirement
Income Benefit otherwise payable to him hereunder.
VI. DEFERRED COMPENSATION ACCOUNT
Section 6.01
Company shall establish a Deferred Compensation Account in the name of each
Participant. Notwithstanding the establishment of each said Account, no
Participant shall be deemed to have any present interest therein and the amounts
credited thereto shall be subject to the claims of Company's general creditors.
Section 6.02
At the end of any Plan Year in which a Participant makes a deferral election
hereunder, his Deferred Compensation Account shall be credited with (i) the
amount of said deferrals, (ii) all Company Matching Contribution Amount(s) (if
any), and (iii) interest, from the date of actual deferral, compounded annually
in arrears at the Xxxxx'x Corporate Bond Index rate as published by Xxxxx'x
Investors Services, Inc. Within thirty (30) days after the end of each Plan
Year, each such Participant shall receive a statement reflecting the value of
said Participant's Deferred Compensation Account (if any).
Section 6.03
If a Participant shall have completed the number of years of Plan participation
from and after December 31, 1993 indicated in the table below, his Deferred
Compensation Account shall retroactively be credited with an additional rate of
interest as set forth in the table below:
YEARS OF PARTICIPATION ADDITIONAL RATE
SINCE JANUARY 1, 1994 OF INTEREST
--------------------- ----------------
Five (5) Years One (1%) Percent
Ten (10) Years Two (2%) Percent
Notwithstanding the above, the interest rate credited to the Deferred
Compensation Account of a Participant who shall have made a hardship withdrawal
in accordance with the terms of Section 8.01 hereof prior to having attained the
age of sixty-two (62) years, shall be retroactively reduced to seventy-five
(75%) percent of the rates indicated above.
ARTICLE VII. DISTRIBUTION OF DEFERRED
COMPENSATION ACCOUNT
Section 7.01
At any time prior to the date of his separation from service, a Participant may
elect to have the value of his Deferred Compensation Account paid to him, upon
his termination of service with the Company, or to his designated Beneficiary in
the event of his death prior to his termination of service with the Company, as
follows:
Section 7.01.1. Upon termination of service for any reason other
than death, by one of the following methods:
(i) In a lump sum, on a date selected by the Participant but no
later than the April 1st. of the year following said termination of service, or
(ii) In monthly installments, for any period (selected by
Participant) from two (2) to fifteen (15) years certain, commencing on a date
selected by the Participant but no later than the April 1st. following the year
of termination (hereinafter "Installment Payment Inception Date"), in an amount
determined as follows:
Commencing on the Installment Payment Inception Date, and continuing
thereafter in substantially equal amounts (but not less than $100 per month), an
amount equal to the average of payments for a period certain annuity, as quoted
by two (2) insurance companies at the time of said Installment Inception Payment
Date, for the selected number of installments.
A Participant's election may be changed at any time prior to his termination of
employment.
Section 7.01.2. Upon the death of a Participant, in a lump sum no later than
sixty (60) days following his date of death.
ARTICLE VIII. HARDSHIP DISTRIBUTION
Section 8.01
In the event a Participant has an unexpected need for cash arising from an
illness, casualty loss, sudden financial reversal or other
unforeseen occurrence which constitutes an unforeseeable emergency in the
affairs of the Participant creating a hardship upon him, he may apply to the
Committee for permission to withdraw the entire amount in his Deferred
Compensation Account. The Committee will promptly act upon such request, and if
it is approved, the entire value (but no lesser amount) of said Participant's
Deferred Compensation Account will be distributed to said Participant within
thirty (30) days of said approval.
ARTICLE IX. MISCELLANEOUS
Section 9.01
The Plan shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of Company and the Participants.
Notwithstanding the foregoing, a Participant's right to receive payment
hereunder shall not be subject to attachment or garnishment by creditors of the
Participant or the Participant's beneficiary, and is hereby expressly declared
to be personal, and not subject in any manner to alienation, sale, transfer,
assignment, pledge or incumbrance, and in the event of any attempted assignment
or transfer of such rights contrary to the provisions hereof, Company shall have
no further liability for payments hereunder.
Section 9.02
Any payments under the Plan shall be independent of, and in addition to, those
under any other plan, program or agreement which may have been adopted by
Company or any other compensation payable to a Participant or a Participant's
designated Beneficiary by the Company.
Section 9.03
Notwithstanding anything contained herein to the contrary, Company reserves the
right to terminate the Plan if there is an adverse change in the Federal Income
Tax laws governing the taxation of deferred compensation plans similar to the
Plan; provided, however, that any such termination shall be prospective in
effect and shall not diminish in any way the then current Deferred Compensation
Obligation to Participants in the Plan.
Section 9.04
It is intended and understood by the Company, the Trustee and the Participants,
that this Plan is designed to comply with the provisions of the Internal Revenue
Code and Regulations relating to Non Qualified Deferred Compensation Plans in
effect at the time of its adoption and that the benefits payable to Participants
shall not be deemed current compensation and shall not be included in taxable
income under Federal or State law until actually distributed. If, at a later
date, the laws of the United States of America or the State of New York are
construed in such a way as to make such understanding and intent invalid or not
in compliance with the Internal Revenue Code and Regulations thereunder, then
this Plan will be given effect in such matter as will best carry out the
purposes and intentions of the parties.
Section 9.05
The Plan, and any amendment thereto, shall be interpreted and administered so as
to be consistent with, the terms of the Trust.
