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Exhibit 10.2
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Nabisco, Inc.
Deferred Compensation Plan
(amended and restated effective as of September 13, 2000)
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Nabisco, Inc.
Deferred Compensation Plan
(amended and restated effective as of September 13, 2000)
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Page
1. Purposes.................................................................1
2. Definitions..............................................................1
3. Administration...........................................................4
4. Participation............................................................5
5. Deferrals................................................................5
6. Deferral Accounts........................................................7
7. Settlement of Deferral Accounts..........................................8
8. Provisions Relating to Section 162(m) of the Code.......................10
9. Statements..............................................................11
10. Amendment/Termination...................................................11
11. General Provisions......................................................11
12. Claim and Appeal Procedure..............................................13
13. Effective Date..........................................................14
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1. Purposes. The purposes of this Nabisco, Inc. Deferred Compensation
Plan, as amended and restated effective as of September 13, 2000 (the "Plan")
are to provide a select group of management or highly compensated employees of
Nabisco, Inc. (the "Company") and its subsidiaries and certain affiliated
entities, as well as members of its or their Boards of Directors, with the
opportunity to elect to defer receipt of specified portions of compensation and
fees and to have such deferred amounts treated as if invested in specified
investment options.
2. Definitions. In addition to the terms defined in Section 1 above, the
following terms used in the Plan shall have the meanings set forth below:
(a) "Administrator" shall mean the Administration Committee set
forth in Section 3(b) to whom the Committee has delegated the authority to
take action under the Plan.
(b) "Beneficiary" shall mean the beneficiary designated by the
Participant under the Company-paid group term life insurance plan, unless
the Participant has designated any other person or persons (who may be
designated contingently or successively and which may be an entity other
than a natural person) on a form supplied by the Administrator to receive
benefits payable in the event of the death of the Participant. In the
event of the Participant's death without an effective Beneficiary
designation, any Plan benefits payable shall be paid in equal parts to the
Participant's surviving spouse or, if the Participant has no surviving
spouse, to the Participant's surviving children or, if the Participant has
no surviving children, to the Participant's surviving parents, or if the
Participant has no surviving parents, to the Participant's surviving
siblings or, if the Participant has no surviving siblings, to the
Participant's estate.
(c) "Board" shall mean the Board of Directors of Nabisco Holdings
Corp. ("NHC").
(d) As used herein, a "Change of Control" shall occur on the date
upon which one of the following events occurs (except as otherwise
provided in paragraph (iii) below):
(i) Any individual, corporation, partnership, group, associate
or other entity or "person" as such term is defined in Section 14(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"), other
than NHC, Nabisco Group Holdings Corp. ("NGH") or any of their
Subsidiaries, or any employee benefit plan(s) sponsored by NHC, NGH
or any of their subsidiaries, is or becomes the "beneficial owner"
(as defined in Rule 13D-3 under the Exchange Act), directly or
indirectly, of 30% or more of the combined voting power of NHC or
NGH outstanding securities ordinarily having the right to vote at
elections of directors;
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(ii) Individuals who constitute the Board of Directors of
either NHC or NGH on January 1, 2000 (each such Board the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board of NHC or NGH, as the case may be, provided that any
person becoming a director subsequent to such date hereof whose
election, or nomination for election by NHC or NGH shareholders, as
the case may be, was approved by a vote of at least three-quarters
of the directors comprising that Incumbent Board (either by a
specific vote or by approval of the proxy statement of NHC or NGH,
as the case may be, in which such person is named a nominee of NHC
or NGH, as the case may be, but excluding for this purpose 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 an individual, corporation, partnership,
group, associate or other entity of "person" other than the NHC or
NGH Board, as the case may be, shall be, for purposes of this
paragraph (ii), considered as though such person were a member of
the Incumbent Board.
(iii) The approval by the shareholders of NHC or NGH, as the
case may be, of a plan or agreement providing (A) for a merger or
consolidation of NHC or NGH, as the case may be, other than with a
wholly-owned subsidiary or with NGH, NHC or any of their
subsidiaries, and other than a merger or consolidation that would
result in the voting securities of NHC or NGH, as the case may be,
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined
voting power of the voting securities of NHC or NGH, as the case may
be, of such surviving entity outstanding immediately after such
merger or consolidation or (B) for a sale, exchange or other
disposition of all or substantially all of the assets of NHC or NGH.
If any of the events enumerated in this paragraph (iii) occurs, the
NHC's Board of Directors shall determine the effective date of the
Change of Control resulting therefrom.
For purposes hereof, "Subsidiary" of NHC or NGH means any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by NHC or NGH, as the case may be.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
References to any provision of the Code or regulation (including a
proposed regulation) thereunder shall include any successor provisions or
regulations.
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(f) "Committee" shall mean the Compensation Committee of the Board
or any other directors of NHC designated as the Committee. Any function of
the Committee may be delegated to the Administrator.
(g) "Deferral Account" shall mean the account or subaccount
established and maintained by the Company for specified deferrals and
contributions attributable to a Participant, as described in Section 5.
Deferral Accounts will be maintained solely as bookkeeping entries by the
Company to evidence unfunded obligations of the Company, its subsidiaries
and/or related entities.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended. References to any provision of the Exchange Act or rule
thereunder shall include any successor provisions or rules.
(i) "Financial Hardship" shall mean an unexpected and significant
need for cash (which cannot be met reasonably and contemporaneously from
other sources) arising from an illness, casualty loss, sudden financial
reversal or other such unforeseeable occurrence as determined by the
Committee in its sole discretion. Cash needs arising from foreseeable
events or discretionary expenditures such as the purchase of a residence
or education expenses for children shall not, alone, be considered a
Financial Hardship.
(j) "Participant" shall mean any employee of the Company or any
subsidiary or affiliated entity or a member of the board of directors of
the Company or Nabisco Group Holdings, Inc., who is on U.S. payroll and
subject to taxation in the United States and who is designated by the
Committee as an eligible Participant in the Plan and who participates or
makes an election to participate in the Plan.
(k) "Plan Year" shall mean the period from June 1, 1999 through
December 31, 1999, and thereafter shall mean the calendar year.
(l) "Trust" shall mean any trust or trusts established by the
Company as part of the Plan; provided, however, that the assets of such
trusts shall remain subject to the claims of the general creditors of the
Company.
(m) "Trustee" shall mean the trustee of a Trust.
(n) "Trust Agreement" shall mean the agreement entered into between
the Company and the Trustee to carry out the purposes of the Plan, as
amended or restated from time to time.
(o) "Valuation Date" shall mean the close of business on the last
business day of each calendar month.
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3. Administration.
(a) Authority. Both the Committee and the Administrator (subject to
the ability of the Committee to restrict the Administrator) shall
administer the Plan in accordance with its terms, and shall have all
powers necessary to accomplish such purpose, including the power and
authority to construe and interpret the Plan, to define the terms used
herein, to prescribe, amend and rescind rules and regulations, agreements,
forms, and notices relating to the administration of the Plan, and to make
all other determinations necessary or advisable for the administration of
the Plan. Any actions of the Committee or the Administrator with respect
to the Plan shall be conclusive and binding upon all persons interested in
the Plan, except that any action of the Administrator will not be binding
on the Committee. The Committee and Administrator may each appoint agents
and delegate thereto powers and duties under the Plan, except as otherwise
limited by the Plan.
(b) Administrator. The Administration Committee shall consist of
such number of members as shall be determined by the Committee, each of
whom shall be appointed by, shall remain in office at the will of, and may
be removed, with or without cause, by the Committee. Any member of the
Administration Committee may resign at any time. No member of the
Administration Committee shall be entitled to act on or decide any matter
relating solely to himself or herself or any of his or her rights or
benefits under the Plan. The members of the Administration Committee shall
not receive any special compensation for serving in their capacities as
members of the Administration Committee but shall be reimbursed for any
reasonable expenses incurred in connection therewith. No bond or other
security need be required of the Administration Committee or any member
thereof in any jurisdiction. The initial members of the Administration
Committee are the Company's Executive Vice President & Chief Personnel
Officer - Human Resources, Executive Vice President & Chief Financial
Officer, Executive Vice President and General Counsel and Vice President -
Compensation. The Senior Vice President & Treasurer is appointed to act as
a business consultant to the Administration Committee.
(c) Limitation of Liability. Each member of the Committee and the
Administrator shall be entitled to, in good faith, rely or act upon any
report or other information furnished to him or her by any officer or
other employee of the Company or any subsidiary or affiliated entity, the
Company's independent certified public accountants, or any executive
compensation consultant, legal counsel, or other professional retained by
the Company to assist in the administration of the Plan. To the maximum
extent permitted by law, no member of the Committee or the Administrator,
nor any person to whom ministerial duties have been delegated, shall be
liable to any person for any action taken or omitted in connection with
the interpretation and administration of the Plan.
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4. Participation. The Administrator will notify each person of his or her
participation or eligibility to participate in the Plan not later than 15 days
(or such other period as may be practicable in the circumstances) prior to any
deadline for filing an election form.
5. Deferrals. To the extent authorized by the Administrator, a Participant
may elect to defer compensation or awards to be received from the Company or a
subsidiary or an affiliated entity, including annual base salary, Company
contributions made on behalf of a Participant to a Company-sponsored defined
benefit or defined contribution nonqualified deferred compensation plan, some or
all Annual Incentive Award Plan ("AIAP") awards, some or all Long-Term Incentive
Plan ("LTIP") awards, severance pay, fees, retention awards, and sign-on
bonuses, or as otherwise designated by the Administrator; provided, however,
that a Participant may defer, with respect to a given year, receipt of only that
portion of the Participant's compensation that exceeds the amount necessary to
satisfy Medicare and all other applicable payroll taxes imposed on the wages of
such Participant from the Company and its subsidiaries and/or affiliated
entities, unless otherwise determined by the Administrator. In addition to such
limitations, and any terms and conditions of deferral set forth under plans,
programs or arrangements from which receipt of compensation or awards is
deferred, the Administrator may impose (1) limitations on the amounts permitted
to be deferred, (2) limitations on the sources and timing and form of deferrals,
(3) limitations on amounts and sources of deferrals for particular Participants;
and (4) terms and conditions regarding all deferrals under the Plan. Any such
limitations, and other terms and conditions of deferral, shall be set forth in
the rules relating to the Plan or election forms, other forms, or instructions
of the Committee and/or the Administrator, which may be, but need not be, set
forth in writing. Amounts deferred under this Plan generally are subject to FICA
withholding at the later of the time of deferral or the time of vesting, which
FICA withholding amounts will be withheld (and subject to federal, state and/or
local income taxation) from non-deferred compensation, or at such other time as
is required by law and from such other sources (including from the applicable
Deferral Account) as is determined by the Administrator.
(a) Elections. Once an election form, properly completed, is
received by the Company, the elections of the Participant shall be
irrevocable. Deferral election forms apply only for a given Plan Year. A
new deferral election form must be filed each year. The minimum deferral
amount in the aggregate for any Plan Year in which a Participant elects to
participate herein is $5,000.
Deferral elections shall specifically state the period of deferral;
deferrals must be for either a period of years or until termination of
employment, and different deferral elections may be made with respect to
different deferral sources. Deferrals for a period of years must be for at least
two full calendar years, and will be scheduled for payment in January of the
applicable Plan Year. Notwithstanding the preceding sentence, the Administrator
may permit some deferrals for a period of years to be for a minimum period of
two elapsed years (i.e., not two full calendar years). If a Participant
terminates employment prior to a scheduled withdrawal, the Deferral Account will
be distributed
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(pursuant to Section 7) following such termination of employment, unless
otherwise provided herein. Scheduled in-service distributions may be redeferred
by the Participant up to two times, each such redeferral election being for a
period of at least two full calendar years (unless otherwise determined by the
Administrator) beyond the previously scheduled distribution date. A redeferral
election must be made prior to the date established therefor by the
Administrator.
(b) Date of Election. An election to defer compensation or awards
hereunder must be received by the Administrator prior to the date
specified by the Administrator. Under no circumstances may a Participant
defer compensation or awards to which the Participant has attained, at the
time of deferral, a legally enforceable right to current receipt of such
compensation or awards, as determined in the sole discretion of the
Administrator.
(c) Company Contributions. In addition to the deferrals elected by
Participants, the Company shall make Company contributions to the Deferral
Accounts of Participants equal to 3% of the amount of deferrals elected by
the Participant that would have been included as compensation, but
excluding severance compensation, under the Nabisco Inc. Capital
Investment Plan. The amount of Company contributions described in the
prior sentence will become fully vested on the second anniversary of a
Participant's date of hire.
In addition to the contributions described above, the Company may
choose at any time to make discretionary Company contributions to the
Deferral Accounts of Participants in such amounts as it, in its sole
discretion, wishes. Discretionary Company contributions will be subject to
a vesting schedule, established by the Company or the Administrator at the
time of the contribution.
Notwithstanding the above, all amounts allocated under this Section
5(c) shall become fully vested upon a Change of Control.
(d) Severance Deferrals. The Administrator may designate for
participation in this Plan certain individuals whose employment with the
Company or its subsidiaries or related entities is being terminated, who
would otherwise receive certain severance payments and/or other payments
attributable to the termination of employment from their employer
including, without limitation, salary continuation benefits and perquisite
allowances. Such Participants may elect, at such times and in such manner
as the Administrator determines, to defer or redefer (for such periods as
the Administrator determines) receipt of some or all of such severance pay
and/or related payments, and to have the deferred amounts credited to a
Deferral Account hereunder.
(e) Stock Option/Unit Deferrals. The Administrator may designate for
participation in this Plan certain individuals who hold stock options or
restricted stock units granted to such individuals pursuant to NHC's 1994
Long Term Incentive Plan or NGH's 1990 Long Term Incentive Plan. Such
Participants may
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elect, at such times and in such manner as the Administrator determines,
in the event that NHC or NGH, as the case may be, determines to settle
such stock options or restricted stock units in cash, to defer or redefer
(for such periods as the Administrator determines) receipt of some or all
of such amounts and to have the deferred amounts credited to a Deferral
Account hereunder.
(f) Retention Payments. The Administrator may designate for
participation in this Plan certain individuals who participate in the NHC
1999 Retention Program (the "Retention Program"). Each such Participant
may elect, at such times and in such manner as the Administrator
determines, to defer or redefer (for such periods as the Administrator
determines) receipt of some or all of any payments that would otherwise
become payable to the Participant under the Retention Program and to have
the deferred amounts credited to a Deferral Account hereunder.
(g) General. Such deferred amounts will generally be subject to the
terms and conditions of this Plan, except that the deferral election shall
be for a period of years only (with the maximum deferral and redeferral
periods after termination of employment to be determined by the
Administrator), and will be paid out in the form of a lump sum or
installments (in the form permitted under Section 7), as elected by the
Participant. If the Participant dies prior to the end of the period of
years, the Deferral Account shall be paid out to the Participant's
Beneficiary as soon as practicable following the Administrator's receipt
of notice of death. Participants participating pursuant to this Section 5
may direct the investment of their Deferral Accounts pursuant to Section
6(b) and 6(c).
6. Deferral Accounts.
(a) Establishment; Crediting of Amounts Deferred. One or more
Deferral Accounts will be established for each Participant, as determined
by the Administrator. The amount of compensation or awards deferred with
respect to each Deferral Account will be credited to such Deferral Account
as of the date on which such amounts would have been paid to the
Participant but for the Participant's election to defer receipt hereunder.
The amounts of hypothetical income and appreciation and depreciation in
value of such account will be credited and debited to, or otherwise
reflected in, such Deferral Account from time to time. Unless otherwise
determined by the Administrator, amounts credited to a Deferral Account
shall be deemed invested in a hypothetical investment as of the date of
deferral.
(b) Hypothetical Investment Options. Amounts credited to a Deferral
Account shall be deemed to be invested, at the Participant's direction, in
one or more investment options as may be specified from time to time by
the Administrator. Until such time as a Participant's life insurance
policy under the Plan is approved, deferrals will be deemed invested in a
money market vehicle. The Administrator may change or discontinue any
hypothetical investment option
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available under the Plan in its discretion; provided, however, that,
subject to the authority of the Administrator to disregard the directions
of any Participant, each affected Participant is given the opportunity,
without limiting or otherwise impairing any other right of such
Participant regarding changes in investment directions, to redirect the
allocation of his or her Deferral Account deemed invested in the
discontinued investment option among the other hypothetical investment
options, including any replacement option.
(c) Allocation and Reallocation of Hypothetical Investments. A
Participant may allocate amounts credited to his or her Deferral Account
to one or more of the hypothetical investment options authorized under the
Plan. Subject to the rules established by the Administrator, a Participant
may reallocate amounts credited to his or her Deferral Account as of the
Valuation Date following the Participant's election to one or more of such
hypothetical investments, by filing with the Administrator a notice, in
such form as may be specified by the Administrator, not later than the
date specified by the Administrator. The Committee or Administrator may,
in its discretion, restrict allocation into or reallocation by specified
Participants into or out of specified investment options or specify
minimum amounts that may be allocated or reallocated by Participants.
(d) Trusts. The Committee may, in its discretion, establish one or
more Trusts (including sub-accounts under such Trusts), and deposit
therein amounts of cash or other property not exceeding the amount of the
Company's obligations with respect to a Participant's Deferral Account
established under this Section 6. In such case, the amounts of income,
appreciation and depreciation in value of such Deferral Account shall be
determined by the Administrator, based upon the hypothetical investment
elections made by Participants. Other provisions of the Plan
notwithstanding, the timing of allocations and reallocations of assets in
such a Deferral Account, and the investment options available with respect
to such Deferral Account, may be varied to reflect the timing of actual
investments of the assets of such Trust and the actual investments
available to such Trust, all as determined in the sole discretion of the
Administrator. The Trust's investment vehicles may include life insurance
(including, but not limited to, variable life insurance), and such other
assets as may be selected from time to time.
7. Settlement of Deferral Accounts.
(a) Form of Payment. The Company shall settle a Participant's
Deferral Account, and discharge all of its obligations to pay deferred
compensation under the Plan with respect to such Deferral Account, by
payment of cash. Any forfeited amounts will be held in the trust to offset
future contributions and as directed by the Committee.
Scheduled in-service distributions, as well as distributions made under
Section 7(c), will be made in the form of a lump sum.
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Distributions as a result of termination of employment, by reason of
death, involuntary termination with cause (as determined by the Administrator),
or resignation, shall be made in the form of a lump sum.
Distributions as a result of termination of employment by reason of
retirement on or after early retirement age (as defined in the Company's
retirement plan or as otherwise determined by the Administrator), disability (as
defined in the Company's long term disability plan or as otherwise determined by
the Administrator), or, except as provided below, involuntary termination
without cause (as determined by the Administrator), will generally be made in
the form of a lump sum. Nevertheless, Participants whose termination of
employment is described in the above sentence, and who have at least five (5)
years of service with the Company and its related companies, and who would
otherwise be entitled to a distribution of at least $30,000 hereunder, may elect
on a timely basis (as determined by the Administrator) to receive their Deferral
Accounts distributed in quarterly installments over a period of five (5), ten
(10) or fifteen (15) years. The foregoing notwithstanding, Participants whose
employment is terminated during the two-year period beginning on a Change of
Control, who have less than five (5) years of service with the Company and its
related companies, and who would otherwise be entitled to a distribution of at
least $30,000 hereunder, may elect on a timely basis (as determined by the
Administrator) to receive their Deferral Accounts distributed in quarterly
installments over a period of five (5), ten (10) or fifteen (15) years.
If a Participant receiving installment payments pursuant to this Section
dies, any remaining amounts in his Deferral Account will be distributed to his
Beneficiary in the form of a lump sum as soon as practicable following notice of
his death.
(b) Timing of Payments. Payments in settlement of a Deferral Account
shall be made as soon as practicable after the date or dates (including
upon the occurrence of specified events) elected by the Participant in his
or her election relating to such Deferral Account. In the case of
termination by reason of involuntary termination without cause (as
determined by the Administrator) during the two year period after a Change
of Control, distributions shall be made (or commence) on the payment date
elected by the Participant (which can be up to ten (10) years after such
termination. Other distributions made as a result of termination of
employment shall be made as soon as practicable in the quarter following
the quarter of such termination. In-service withdrawals, other than those
made pursuant to Section 7(c), will be paid in January of the year elected
by the Participant.
(c) Financial Hardship Withdrawal. A Participant may request that
the Committee permit him or her to take a withdrawal or withdrawals on
account of Financial Hardship. In such event, the Committee shall
determine in its sole discretion whether a Financial Hardship exists and,
if it so determines, whether the Participant should be permitted to take
such a withdrawal. The Committee shall also determine the amount of the
permitted withdrawal, which shall not exceed the amount necessary to
address the Financial Hardship, and whether the
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Participant must reduce or cease a current Deferral Election, if any, as a
condition for a Financial Hardship withdrawal.
(d) Non-Scheduled In-Service Distributions. Other provisions of the
Plan notwithstanding, a Participant may at any time request a distribution
of some or all of his or her vested Deferral Account (with a minimum
distribution amount of $5,000) for any reason, if such distribution is
approved by the Administrator. In such event, however, ten percent (10%)
of the amount deducted from the Participant's Deferral Account will be
forfeited and not paid to the Participant, and the Participant may make no
further deferrals for the balance of that Plan Year or the following Plan
Year. Withdrawals made pursuant to this Section 7(d) will be paid as soon
as practicable following approval of the Administrator.
(e) Certain Change of Control Distributions. (i) In the event of a
Change of Control of NHC, provided that a Participant has previously
elected, at such times and in such manner as the Administrator determines,
to receive payment of the Participant's Deferral Account upon such a
Change of Control, a Participant's Deferral Account shall be distributed
as soon as practicable following such Change in Control to such
Participant in the form of a lump sum.
(ii) In the event of a Change of Control of NGH while NGH is
the "beneficial owner" of 30% or more of the combined voting power
of NHC outstanding securities ordinarily having the right to vote at
elections of NHC directors, and provided that a Participant has
previously elected, at such times and in such manner as the
Administrator determines, to receive payment of the Participant's
Deferral Account upon such a Change of Control, a Participant's
Deferral Account shall be distributed as soon as practicable
following such Change in Control to such Participant in the form of
a lump sum.
8. Provisions Relating to Section 162(m) of the Code.
Compliance with Section 162(m) of the Code. It is the intent of the
Company that any compensation (including any award) deferred under the Plan by a
person who is, with respect to the year of payout, deemed by the Committee to be
a "covered employee" within the meaning of Section 162(m) of the Code and
regulations thereunder, which compensation constitutes "qualified
performance-based compensation" within the meaning of Section 162(m) of the Code
and regulations thereunder, shall not, as a result of deferral hereunder, become
compensation with respect to which the Company in fact would not be entitled to
a tax deduction under Section 162(m) of the Code. Accordingly, unless otherwise
determined by the Committee, if any compensation would become so disqualified
under Section 162(m) as a result of deferral hereunder, the terms of such
deferral shall be automatically modified to the extent necessary to ensure that
the compensation would not, at the time of payout, be so disqualified.
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9. Statements. The Administrator will furnish statements to each
Participant reflecting the amount credited to a Participant's Deferral Accounts
and transactions therein not less frequently than once each calendar quarter.
10. Amendment/Termination. The Committee may, with prospective or
retroactive effect, amend, alter, suspend, discontinue, or terminate the Plan at
any time without the consent of Participants, stockholders, or any other person;
provided, however, that, without the consent of a Participant, no such action
shall adversely affect the rights of such Participant with respect to the right
to payment of amounts credited to such Participant's Deferral Account as of the
date of such action. Notwithstanding the foregoing, upon the occurrence of a
Change of Control, the Plan may not be amended or terminated so as to reduce or
eliminate any rights or benefits that have been vested or accrued hereunder.
11. General Provisions.
(a) Limits on Transfer of Awards. Other than by will or the laws of
descent and distribution, no right, title or interest of any kind in the
Plan shall be transferable or assignable by a Participant or his or her
Beneficiary or be subject to alienation, anticipation, encumbrance,
garnishment, attachment, levy, execution or other legal or equitable
process, nor subject to the debts, contracts, liabilities or engagements,
or torts of any Participant or his or her Beneficiary. Any attempt to
alienate, sell, transfer, assign, pledge, garnish, attach or take any
other action subject to legal or equitable process or encumber or dispose
of any interest in the Plan shall be void.
(b) Receipt and Release. Payments (in any form) to any Participant
or Beneficiary in accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims for the compensation
or awards deferred and relating to the Deferral Account to which the
payments relate against the Company or any subsidiary or affiliated entity
thereof, the Committee, or the Administrator, and the Administrator may
require such Participant or Beneficiary, as a condition to such payments,
to execute a receipt and release to such effect.
(c) Unfunded Status of Awards: Creation of Trusts. The Plan is
intended to constitute an "unfunded" plan for deferred compensation and
Participants shall rely solely on the unsecured promise of the Company or
applicable affiliated entity for payment hereunder. With respect to any
payment not yet made to a Participant under the Plan, nothing contained in
the Plan shall give a Participant any rights that are greater than those
of a general unsecured creditor of the Company or the applicable
affiliated entity; provided, however, that the Committee may authorize the
creation of Trusts, including but not limited to the Trusts referred to in
Section 6 hereof, or make other arrangements to meet the Company's
obligations under the Plan, which Trusts or other arrangements shall be
consistent with the "unfunded" status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
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(d) Compliance. A Participant in the Plan shall have no right to
receive payment (in any form) with respect to his or her Deferral Account
until legal and contractual obligations of the Company relating to
establishment of the Plan and the making of such payments shall have been
complied with in full. In addition, the Company shall impose such
restrictions on any interest constituting a security as it may deem
advisable in order to comply with the Securities Act of 1933, as amended,
the requirements of the New York Stock Exchange or any other applicable
stock exchange or automated quotation system, any state securities laws
applicable to such a transfer, any provision of the Company's Certificate
of Incorporation or Bylaws, or any other law, regulation, or binding
contract to which the Company is a party.
(e) Other Participant Rights. No provision of the Plan or
transaction hereunder shall confer upon any Participant any right to be
employed by the Company or a subsidiary thereof, or to interfere in any
way with the right of the Company or a subsidiary to increase or decrease
the amount of any compensation payable to such Participant. Subject to the
limitations set forth in Section 11(a) hereof, the Plan shall inure to the
benefit of, and be binding upon, the parties hereto and their successors
and assigns.
(f) Legal Fees and Expenses. On or after a Change of Control, the
Company shall pay all reasonable legal fees and expenses which a
Participant may incur in respect of obtaining from the Company any benefit
to which he is entitled under the Plan.
(g) Tax Withholding. The Company and any subsidiary or affiliated
entity shall have the right to deduct from amounts otherwise payable in
settlement of a Deferral Account any sums that federal, state, local or
foreign tax law requires to be withheld with respect to such payment.
(h) Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the laws of the State of New Jersey, without
giving effect to principles of conflicts of laws, and applicable
provisions of federal law.
(i) Limitation. A Participant and his or her Beneficiary shall
assume all risk in connection with any decrease in value of the Deferral
Account and neither the Company or any subsidiary or affiliated entity,
the Committee nor the Administrator shall be liable or responsible
therefor.
(j) Construction. The captions and numbers preceding the sections of
the Plan are included solely as a matter of convenience of reference and
are not to be taken as limiting or extending the meaning of any of the
terms and provisions of the Plan. Whenever appropriate, words used in the
singular shall include the
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plural or the plural may be read as the singular, and male references
shall include female and neuter, and vice versa.
(k) Severability. In the event that any provision of the Plan shall
be declared illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of the Plan but shall
be fully severable, and the Plan shall be construed and enforced as if
said illegal or invalid provision had never been inserted herein.
(l) Status. The establishment and maintenance of, or allocations and
credits to, the Deferral Account of any Participant shall not vest in any
Participant any right, title or interest in and to any specific assets or
benefits except at the time or times and upon the terms and conditions and
to the extent expressly set forth in the Plan and in accordance with the
terms of the Trust.
12. Claim and Appeal Procedure. The Administrator shall provide adequate
notice in writing to any Participant or to any Beneficiary ("Claimant") whose
claim for benefits under the Plan has been denied. The Administrator's notice to
the Claimant shall set forth:
(a) The specific reason for the denial;
(b) Specific references to pertinent Plan provisions upon which the
Administrator based its denial;
(c) A description of any additional material and information that is
needed; and
(d) That any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Administrator within seventy-five
(75) days after receipt of the Administrator's notice of denial of
benefits. The Administrator's notice must further advise the Claimant that
his failure to appeal the action to the Administrator in writing within
the seventy-five (75) day period will render the Administrator's
determination final, binding and conclusive.
If the Claimant should appeal to the Administrator, he, or his duly
authorized representative, may submit, in writing, whatever issues and comments
he or his duly authorized representative feels are pertinent. The Claimant, or
his duly authorized representative, may review pertinent Plan documents. The
Administrator shall re-examine all facts to the appeal and make a final
determination as to whether the denial of benefits is justified under the
circumstances. The Administrator shall advise the Claimant of its decision
within sixty (60) days of the Claimant's written request for review, unless
special circumstances (such as a hearing) would make the rendering of a decision
within the sixty (60) day limit unfeasible, but in no event shall the
Administrator render a decision respecting a denial for a claim of benefits
later than one hundred twenty (120) days after its receipt of a request for
review.
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The Administrator's notice of denial of benefits shall identify the name
and address to whom the Claimant may forward his appeal.
13. Effective Date. The Plan shall be effective September 13, 2000.
