AVERY
DENNISON CORPORATION
SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
Avery
Dennison Corporation (the “Company” and successor to
Avery International Corporation), a corporation organized under the
laws of the State of Delaware, by resolution of its Board of
Directors dated November 17, 1983, adopted the Avery
International Corporation Supplemental Executive Retirement Plan
effective as of December 1, 1983, and which by action of the
Compensation and Executive Personnel Committee of the Board of
Directors on April 23, 1998, was amended and restated to be
the Avery Dennison Corporation Supplemental Executive Retirement
Plan (the “Plan”) effective as of April 23, 1998,
and which Plan by action of the Committee was further amended and
restated effective as of April 22, 2004, as set forth herein.
Between January 1, 2005 and December 31, 2008, the Plan was
operated in accordance with transition relief established by the
Treasury Department and Internal Revenue Service pursuant to Code
Section 409A. The Plan is amended and restated effective as of
January 1, 2009 to bring the Plan into compliance with Code
Section 409A and the Treasury Regulations issued by the
Treasury Department on April 10, 2007 and effective
January 1, 2009.
The Plan
constitutes an unfunded “excess benefit plan” within
the meaning of Section 3(36) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”). The Plan is
maintained primarily for the purpose of providing deferred
Compensation for a select group of management or highly compensated
employees, within the meaning of ERISA Sections 201(2),
301(a)(3) and 401(a)(1).
The Plan is
intended to comply with Code Section 409A and the Treasury
Regulations thereunder. Any provision of this document that is
contrary to the requirements of Code Section 409A or the
Treasury Regulations thereunder shall be null void and of no effect
and the Plan shall be interpreted and administered consistent with
the requirements of Code Section 409A, which shall govern the
administration of the Plan in the event of a conflict between the
Plan terms and the requirements of Code Section 409A and the
Treasury Regulations thereunder.
The purpose
of the Plan is to provide its participants with (i) additional
incentive to further the growth, development and financial success
of the Company, and (ii) an inducement to remain in the
service of the Company, by offering benefits to supplement other
benefits they may be entitled to receive at the time of their
retirement.
Whenever
the terms below are used in the Plan with the first letter
capitalized, they shall have
1
the meaning
specified below. Capitalized terms used in the Plan and not defined
below or in a Letter of Grant shall have the meanings attributed to
those terms under the BRP.
|
(a)
|
|
“ Average Compensation
” shall mean base compensation plus annual bonus over the
last three years of a Participant’s employment, subject to
any adjustments under a Letter of Grant.
|
|
|
|
|
|
(b)
|
|
“ BRP ” shall
mean the Amended and Restated Benefit Restoration Plan of Avery
Dennison Corporation.
|
|
|
|
|
|
(c)
|
|
“ Cause ” shall
mean (i) a Participant’s commission of a crime or other
act that could materially damage the reputation of the Company;
(ii) a Participant’s theft, misappropriation, or
embezzlement of Company property; (iii) a Participant’s
falsification of records maintained by the Company; (iv) a
Participant’s substantial failure to comply with the written
policies and procedures of the Company as they may be published or
revised from time-to-time; (v) a Participant’s
misconduct; or (vi) a Participant’s substantial failure
to perform the material duties of Participant’s job with the
Company, which failure is not cured within 30 days after
written notice from the Company specifying the act or acts of
non-performance. Determination of Cause shall be made by the
Committee or one or more individuals designated by the Committee,
in its sole and exclusive discretion.
|
|
|
|
|
|
(d)
|
|
“ Change in Control
” shall mean a Change in Control as defined under the
BRP.
|
|
|
|
|
|
(e)
|
|
“ Committee ”
shall mean the Compensation and Executive Personnel Committee of
the Board of Directors of the Company.
|
|
|
|
|
|
(f)
|
|
“ Company ” shall
mean Avery Dennison Corporation.
|
|
|
|
|
|
(g)
|
|
“ Death Benefit ”
shall mean the SERP Benefit payable to a surviving spouse in
accordance with Section 5.1 and Section 5.2.
|
|
|
|
|
|
(h)
|
|
“ Disability ”
shall mean, with respect to a Participant, the approval for long
term disability under the applicable long term disability plan
maintained by the Company or an Affiliate under which the
Participant is covered.
|
|
|
|
|
|
(i)
|
|
“ Good Reason ”
shall mean a “separation from service for good reason”
as set forth in Code Section 409A, so long as, without the
express written consent of the Participant, one or more of the
following shall have occurred without being timely remedied in the
manner set forth below:
|
(i) A
material diminution in the Participant’s base
compensation;
(ii) A
material diminution in the Participant’s authority, duties,
or responsibilities;
(iii) A
material diminution in the authority, duties, or responsibilities
of the supervisor to whom the Participant is required to
report;
(iv) A
material change in the geographic location at which the Participant
must perform the services; or
2
(v) Any
other action or inaction that constitutes a material breach by the
Company of the agreement under which the Participant provides
services.
The
Participant shall have “Good Reason” in connection with
any or all of the above solely if (A) the Participant provides
notice to the Company of the existence of the particular condition,
action or inaction which the Participant considers to give the
Participant “Good Reason” within ninety (90) days
of the initial existence of the condition, or the action or
inaction, and (B) the Company shall not have remedied the
condition, action or inaction within thirty (30) days of its
receipt of the Participant’s notice. The effective date of
any termination for “Good Reason” shall be no later
than twelve (12) months after the initial existence of such
condition, action or inaction constituting “Good
Reason.”
|
(j)
|
|
“ Interest ”
shall mean, except as otherwise stated in the Letter of Grant from
the Company to the Participant, “Interest” as defined
under the BRP.
|
|
|
|
|
|
(k)
|
|
“ Key Employee ”
shall mean an individual determined to be a “Key
Employee” under the Company’s Key Employee Policy, or
any other definition adopted by the Committee with respect to all
plans and arrangements subject to Code
Section 409A.
|
|
|
|
|
|
(l)
|
|
“ Letter of Grant
” shall mean a letter to a Participant describing the SERP
Benefit payable to a Participant, and any terms of the Plan that
may apply to such Participant. Provisions of a Letter of Grant
shall control to the extent inconsistent with the Plan.
|
|
|
|
|
|
(m)
|
|
“ Lump Sum ”
shall mean the single sum payment that is Actuarially Equivalent to
the SERP Benefit payable as of a specified date.
|
|
|
|
|
|
(n)
|
|
“ Plan ” shall
mean the Amended and Restated Avery Dennison Corporation
Supplemental Executive Benefit Plan.
|
|
|
|
|
|
(o)
|
|
“ Participant ”
shall mean an individual who is described under
Article II.
|
|
|
|
|
|
(p)
|
|
“ Qualified Plan
” shall mean the Qualified Plan as defined in the BRP. The
Qualified Plan is a qualified employer plan as defined under
Treasury Regulation Section 1.409A-1(a)(2).
|
|
|
|
|
|
(q)
|
|
“ SERP Benefit ”
shall mean the benefit payable under the Plan.
|
|
|
|
|
|
(r)
|
|
“ 2008 Transition
Election ” shall mean the 2008 Transition Election as
defined under the BRP.
|
Section 1.4
Source of Benefits
The Plan
shall be an unfunded promise of the Company or applicable Company
Affiliates to make payments in accordance with its terms. All SERP
Benefits payable under the Plan shall be paid from the
Company’s general assets, and nothing contained in the Plan
shall require the Company to set aside or hold in trust any funds
for the benefit of a Participant or his Beneficiary, each of whom
shall have the status of a general unsecured creditor with respect
to the
3
Company’s
obligation to make payments under the Plan. Any funds of the
Company available to pay SERP Benefits under the Plan shall be
subject to the claims of general creditors of the Company and may
be used for any purpose by the Company. Notwithstanding the
foregoing, the Company, in its sole discretion, shall have the
authority to allocate the total liability to pay a SERP Benefit for
a Participant who is an Employee of a Company Affiliate (and not
the Company) to such Company Affiliate as it deems
appropriate.
Section 1.5
Administration
Responsibility
for the administration of the Plan shall rest exclusively with the
Committee.
The
Participants in the Plan shall be those Employees of the Company or
any Company Affiliate who are so designated by the
Committee.
Section 3.1
Benefit Formula
The SERP
Benefit payable to a Participant under the Plan, including any
preretirement death benefits payable to his Beneficiary, shall be
determined by the Committee at the time he is designated as a
Participant and shall be set forth in a Letter of Grant. In general
terms, the benefit will be based on a designated percentage of his
Average Compensation.
A
Participant shall be fully vested in his SERP Benefit upon
attaining age 65 while an employee of the Company, or upon any such
earlier date as the Committee designates with respect to him.
Otherwise non-vested SERP Benefits shall vest upon the
Participant’s death or Disability while an employee of the
Company; or upon his involuntary Separation from Service without
Cause, which includes an involuntary Separation from Service due to
a Change in Control; or upon his Separation from Service for Good
Reason; provided, however, the vesting provisions set forth in a
Letter of Grant if different shall control.
ARTICLE IV
– TIME AND FORM OF PAYMENT
Section 4.1
Form of Payment
The form in
which each Participant’s SERP Benefit is paid under the Plan
shall be the same form of payment either specified or, if
applicable, elected under the terms of the BRP. A Participant who
had not received or commenced to receive SERP Benefits as of
December 31, 2008, was permitted to make a 2008 Transition
Election regarding the form of payment.
Section 4.2
Time of Payment
|
(a)
|
|
Benefit Commencement Date
. A Participant’s
SERP Benefit shall be paid as
|
|