AMERICAN EXPRESS SUPPLEMENTAL RETIREMENT PLAN

EXHIBIT 10.33

AMERICAN EXPRESS SUPPLEMENTAL RETIREMENT PLAN

(As amended and restated effective as of January 1, 2009)

TABLE OF CONTENTS

 

 

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AMERICAN EXPRESS SUPPLEMENTAL RETIREMENT PLAN

(As amended and restated effective as of January 1, 2009)

ARTICLE 1

HISTORY AND EFFECTIVE DATES

Section 1.1 History .

(a) On November 26, 1973, the Board of Directors (the “Board”) of American Express Company (“Amex”) authorized and approved the adoption of the American Express Supplementary Pension Plan (the “Plan”) to supplement retirement benefits provided under the American Express Retirement Plan and other retirement and savings plans sponsored by Amex for a select group of management or highly compensated individuals.

(b) On July 1, 1994, the Board authorized and directed the amendment and restatement of the Plan pursuant to the provisions of Section 9 thereof. The Plan was amended and restated generally effective March 1, 1995, and renamed the American Express Company Supplemental Retirement Plan. The Plan was subsequently amended through December 31, 2004.

(c) On July 25, 2005, the Board amended and restated the Plan (immediately prior to such amendment and restatement, the “Prior Plan”), effective January 1, 2005. Except as otherwise expressly provided herein, Participants who were in “pay status” as of January 1, 2005 continue to have the payment of their benefits governed solely by the terms of the Prior Plan; provided, however, that effective with payments made in calendar year 2006 and thereafter, payments other than monthly annuity payments which would have been made on April 1 of any year under the Prior Plan are made on July 1 of such year. Participants who were not in “pay status” as of January 1, 2005 are governed from and after such date by the terms of the Plan, as amended and restated, and as further amended and restated from time to time. For purposes of this section, a Participant was in “pay status” as of January 1, 2005 if he or she was entitled to benefits under the Plan as of January 1, 2005, with payments scheduled to begin on or before April 1, 2005.

(d) Effective as of October 1, 2005, Ameriprise Financial, Inc. (“AFI”) ceased to be a participating employer in Amex’s tax-qualified retirement plans and the components of such plans covering AFI participants were transferred to new plans established by AFI in a transaction that complied with Section 414(l) of the Internal Revenue Code of 1986, as amended (the “Code”). In connection with that transaction, the component of the Plan covering AFI participants was similarly transferred, and active and retired AFI participants and AFI beneficiaries ceased participation in and no longer have any benefits under the Plan.

(e) Generally effective July 1, 2007, benefit accruals under the American Express Retirement Plan, as amended (the “RP”) were ceased. In addition, generally effective as of July 1, 2007, Amex adopted certain changes to the American Express Incentive Savings Plan, as amended, and renamed such plan the American Express Retirement Savings Plan (the “RSP”).

(f) On January 22, 2007, the Board amended and restated the Plan, generally effective July 1, 2007, to reflect the changes made to the RP and the RSP, to allow for the elective deferral of compensation under the Plan, and to rename the Plan the American Express Supplemental Retirement Plan.

(g) On November 19, 2007, the Compensation and Benefits Committee (the “CBC”) approved the First Amendment to the American Express Supplemental Retirement Plan (the “First Amendment”) to provide for the payment of Plan benefits to employees of American Express Bank who would be transferring to the buyer in the sale transaction.

(h) In November 2007, the Employee Benefits Administration Committee (“EBAC”), pursuant to the authority delegated to it, approved the amendment and restatement of the Plan to reflect certain non-material amendments thereto. On November 19, 2007, the CBC approved an amendment to the Plan to provide for accelerated vesting of ROE interest on Deferral Benefits upon the death or disability of a Participant. Effective December 31, 2007, the Executive Vice President of Human Resources, pursuant to the authority delegated to him, approved the amendment and restatement of the Plan to reflect the amendments approved by EBAC and the CBC.

(i) Effective March 29, 2008, the Senior Vice President of Human Resources, Global Compensation & Benefits, pursuant to the authority delegated to him, added a new Section 4.4(b)(v) and amended Section 4.5(c) to make certain changes related to the acquisition of GE Corporate Payment Services.

(j) On July 15, 2008, the Vice President of Global Benefits, pursuant to the authority delegated to him, amended Section 4.4(c) of the Plan to clarify the calculation of Company Contributions for Additional Years of Service.

(k) The Plan is being amended and restated, effective January 1, 2009, by the Vice President of Global Benefits, pursuant to the authority delegated to him, to incorporate the prior amendments made to the Plan during 2008, to make the changes necessary or advisable for compliance with Section 409A of the Code and the treasury regulations and other official guidance issued thereunder, and to make certain other non-material amendments to the Plan.

(l) The Plan has remained in effect since its adoption and has been construed and operated as a “top-hat plan” under Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and Section 2520.104-23 of the United States Department of Labor Regulations.

Section 1.2 Effective Date . Except as expressly provided otherwise herein, the Plan as amended and restated hereby is generally effective January 1, 2009.

Section 1.3 Transition Rules . Each Participant’s accrued benefit under the Prior Plan as of December 31, 2004 (“Grandfathered Benefits”) was determined by the Administrator in accordance with Section 409A of the Code and Notice 2005-1. Except as set forth in Section 1.1(c), Grandfathered Benefits are governed by and administered in accordance with the Prior Plan; provided, however, that any election with respect to Grandfathered Benefits may not materially modify the rights, terms or conditions of the Prior Plan. All other benefits are governed by and administered solely in accordance with the Plan, as amended and restated from time to time.

 

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ARTICLE 2

DEFINITIONS

Section 2.1 Definitions . As used in the Plan, the following terms have the meanings indicated below:

(a) “ Account ” means, with respect to a Participant, his or her Deferral Account and Supplemental Account, collectively.

(b) “ Administrator ” means the Employee Benefits Administration Committee, including any individual(s) to whom the Employee Benefits Administration Committee delegates authority under the Plan, or such other committee or individual(s) authorized to act as the Administrator by the Committee.

(c) “ Affiliate ” means any corporation or other trade or business under common control with Amex, as further defined in the Qualified Retirement Plans.

(d) “ Annual Incentive Award ” means, for a Plan Year, a performance incentive bonus award granted to an Employee under the Company’s Annual Incentive Award Plan, as amended from time to time, or any successor plan thereto, with a performance period of the Plan Year, or a comparable award issued as a Qualifying Award to a key employee under the Company’s 1998 Incentive Compensation Plan, as amended from time to time, or the Company’s 2007 Incentive Compensation Plan, as amended from time to time, or any successor plan thereto; provided that the Committee may, in its discretion, designate additional or different items as Annual Incentive Awards for purposes of the elective deferrals under Article 5.

(e) “ Base Salary ” means, with respect to a Participant, as of a specified date, the annual rate of base salary payable to the Participant as of such date before any reduction for any amounts deferred by the Participant pursuant to Section 401(k) or Section 125 of the Code, or pursuant to a Deferral Plan or any other non-qualified plan which permits the voluntary deferral of compensation.

(f) “ Beneficiary ” means the individual or entity designated by a Participant in accordance with procedures established by the Administrator to receive the Participant’s Supplemental Account or Deferral Account in the event of the Participant’s death.

(g) “ Benefits ” means, with respect to a Participant, his or her Deferral Benefits and Supplemental Benefits, collectively.

(h) “ Code ” means the Internal Revenue Code of 1986, as amended.

(i) “ Committee ” means the Compensation and Benefits Committee of the Board, or such successor committee as may be designated by the Board.

 

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(j) “ Company ” means Amex, any of its subsidiaries and any Affiliates which have become participating employers in a Qualified Retirement Plan.

(k) “ Deferral Account ” means, with respect to a Participant for a given Plan Year, the book reserve account established by Amex for the Participant for such Plan Year pursuant to Section 5.5.

(l) “ Deferral Benefits ” means, with respect to a Participant, the benefits credited to his or her Deferral Accounts.

(m) “ Deferral Distribution ” means a distribution to a Participant from his or her Deferral Accounts.

(n) “ Deferral Election ” means, with respect to a given Plan Year, an election made by an eligible Employee with respect to his or her Deferral Account for such Plan Year under Article 5.

(o) “ Deferral Plan ” means:

(i) for Plan Years ending on or before December 31, 2007, the American Express Salary Deferral Plan, the American Express Pay-for-Performance Deferral Programs and any other similar non-qualified plans for the deferral of compensation available in such Plan Years; and

(ii) for Plan Years beginning on or after January 1, 2008, Article 5 of this Plan and such other non-qualified plans or arrangements for the deferral of compensation as determined by the Administrator, it its sole discretion.

(p) “ Disability ” has the meaning given such term by Section 409A. Whether a Participant has a Disability shall be determined in accordance with Section 409A and the Policy.

(q) “ Employee ” means an elected or appointed officer of the Company or any other individual who the Administrator identifies as an employee of the Company, and whose compensation is reported on a Form W-2, regardless of whether the use of such form is subsequently determined to be erroneous.

(r) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

(s) “ Minimum Schedule Rate ” means, for a calendar year, the “Below ROE Target Range” rate for such calendar year under the metric set forth in Schedule A, as in effect for that calendar year.

(t) “ Moody’s A Rate ” means, for a calendar year, the average corporate bond yield rate for such calendar year, as announced by Moody’s Investor Services for borrowers rated “A.”

 

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(u) “ Participant ” means an Employee who accrues benefits under the Plan; provided, however, that the term “Participant” as used in Article 4 shall be limited to the Employees eligible to participate in the Plan with respect to Supplemental Benefits under Article 4, and the term “Participant” as used in Article 5 shall be limited to the Employees eligible to participate in the Plan with respect to Deferral Benefits under Article 5.

(v) “ PG Award ” means a performance incentive bonus award granted to an Employee with a performance period longer than one Plan Year. A PG Award for a Plan Year shall be:

(i) in the case of a PG Award that qualifies as performance-based compensation for purposes of Section 409A, a PG Award with a performance period ending on the July 1st or later date of such Plan Year; or

(ii) in the case of a PG Award that does not qualify as performance-based compensation for purposes of Section 409A, a PG Award with a performance period beginning on the January 1st of such Plan Year;

provided that the Committee may, in its discretion, designate additional or different items as PG Awards for purposes of the elective deferrals under Article 5.

(w) “ Plan Year ” means,

(i) for Supplemental Benefits under Article 4, the calendar year with reference to which benefits are determined under the Qualified Retirement Plan; and

(ii) for Deferral Benefits under Article 5, the specified calendar year.

(x) “ Policy ” means the American Express Section 409A Compliance Policy, as amended from time to time, and any successor policy thereto.

(y) “ Qualified Retirement Plan ” means the RP and/or the RSP, as the context may imply.

(z) “ Retirement ” means a voluntary Separation from Service by a Participant who is Retirement Eligible on the date of such Separation from Service.

(aa) “ Retirement Eligible ” means, with respect to a Participant, he or she is age 55 or older with ten or more actual or deemed years of service with the Company.

(bb) “ RP-Related Account ” means, with respect to a Participant, the book reserve account established by the Company for the Participant pursuant to Section 4.3.

(cc) “ RSP-Related Account ” means, with respect to a Participant, the book reserve account established by the Company for the Participant pursuant to Section 4.4.

(dd) “ RSP Match Percentage ” means, with respect to a Participant for a Plan Year, the maximum Company Matching Contribution percentage that would be utilized for purposes of the RSP for such Participant for the Plan Year if the Participant had made the maximum Elective Contribution under the RSP for the Plan Year.

 

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(ee) “ Schedule Rate ” means, for a calendar year, the applicable rate for such calendar year determined under the metric set forth in Schedule A, as in effect for that calendar year.

(ff) “ Section 401(a)(17) Limitation ” refers to the limitation on the dollar amount of Compensation which may be taken into account under the Qualified Retirement Plans under Section 401(a)(17) of the Code.

(gg) “ Section 409A ” means Section 409A of the Code, together with the treasury regulations and other official interpretations or guidance issued thereunder.

(hh) “ Section 415 Limitations ” refer to the limitations on benefits for defined benefit pension plans and defined contribution plans which are imposed by Section 415 of the Code.

(ii) “ Separation from Service ” has the meaning given such term by Section 409A. Whether a Participant has a Separation from Service shall be determined in accordance with Section 409A and the Policy.

(jj) “ Severance Plan ” means, collectively, (A) the American Express Senior Executive Severance Plan, effective January 1, 1994, as amended and restated effective January 1, 2009, and as further amended from time to time, and any successor plan thereto, and (B) the American Express Severance Pay Plan, effective January 1, 1987, as amended and restated effective January 1, 2009, and as further amended from time to time, and any successor plan thereto.

(kk) “ Supplemental Account ” means, with respect to a Participant, his or her RP-Related Account and RSP-Related Account, collectively.

(ll) “ Supplemental Benefits ” means, with respect to a Participant, the benefits under his or her Supplemental Account.

(mm) “ Supplemental Distribution ” means a distribution to a Participant from his or her Supplemental Account.

(nn) “ Supplemental Election ” means the election made by a Participant with respect to his or her Supplemental Account under Section 4.6.

(oo) “ Unforeseeable Emergency ” means a severe financial hardship of the Participant resulting from (i) an illness or accident of the Participant, the Participant’s spouse or the Participant’s dependent (as defined in Section 152 of the Code, without regard to paragraphs (b)(1), (b)(2) and (d)(1)(b) thereof), (ii) a loss of the Participant’s property due to casualty, or (iii) such other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, all as determined by the Administrator based on the relevant facts and circumstances and in accordance with Section 409A.

 

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Section 2.2 Qualified Plan Definitions . Capitalized terms not otherwise defined in the Plan shall have the same meaning set forth in the related Qualified Retirement Plan, to the extent applicable, as the context may imply.

Section 2.3 Gender and Number . All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter, as the identity of the person or persons may require. For all purposes of the Plan, where the context admits, the singular shall include the plural, and the plural shall include the singular.

ARTICLE 3

ADMINISTRATION

Section 3.1 Administrator . The Plan shall be administered by the Administrator.

Section 3.2 Authority . Except as otherwise provided by the Committee (but subject to the limitation on the Committee’s authority under Article 9), the Administrator shall have full power, authority and discretion to interpret, construe and administer the Plan, and such interpretation and construction thereof and actions taken thereunder shall be binding on all persons for the purposes so stated by the Administrator. The Administrator may correct any defect, supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Administrator deems necessary or desirable. In the event of a mathematical or accounting error made, or other similar mistake, the Administrator shall have power in its discretion to cause such equitable adjustments to be made to correct for such errors as it considers appropriate in the circumstances. Any decision of the Administrator in the administration of the Plan shall be final and conclusive and binding upon all Participants and Beneficiaries.

ARTICLE 4

SUPPLEMENTAL BENEFITS

Section 4.1 Eligibility . Participation in this Plan with respect to Supplemental Benefits shall be limited to Employees who meet the requirements of Section 4.2, and shall automatically occur for such Employees, provided that the Administrator may designate, on a case-by-case basis, Employees or categories of Employees who shall not be eligible to participate in all or any portion of this Plan, and provided further, that the determination of eligible Employees shall be made consistent with the requirement that the Plan be a “top-hat” plan for purposes of ERISA.

Section 4.2 Participation . To become a Participant in the Plan with respect to Supplemental Benefits, an Employee must:

(a) be a participant under a Qualified Retirement Plan maintained by the Company. Participation by an Employee in a Qualified Retirement Plan shall be determined pursuant to and in accordance with the eligibility criteria applicable under such Qualified Retirement Plan; and

 

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(b) for the relevant Plan Year:

(i) be credited with Compensation earned from the Company in an amount in excess of the applicable Section 401(a)(17) Limitation or accrue benefits under a Qualified Retirement Plan in excess of the Section 415 Limitation; or

(ii) be classified as a level “Band 50” personnel or greater, as such classification is defined by the Administrator from time-to-time, and have deferred Compensation under a Deferral Plan.

Section 4.3 Benefits Under the RP . If a Participant is a participant under the RP, other than a terminated participant, the Company shall establish an RP-Related Account for such Participant, which shall be determined as follows:

(a) “Compensation” for RP Credits . For purposes of RP credits under this Section 4.3, “Compensation” has the meaning given such term in the RP, provided that the Committee may, in its discretion, designate additional or different items as Compensation for purposes of this Section 4.3. Effective with the 2003 performance year (which awards were granted in 2004) and thereafter, “Compensation” for purposes of RP credits under this Section 4.3 shall include the value of restricted stock awards granted to certain Participants in lieu of cash supplemental Annual Incentive Awards.

(b) Contribution Credits . There shall be credited to a Participant’s RP-Related Account for each Plan Year, in accordance with Section 4.5, an amount equal to the excess, if any, of: (x) the Contribution Credits that would have been credited to a Participant’s Defined Benefit Account Balance under the RP for the Plan Year if the Plan’s definition of Compensation was used, the Section 401(a)(17) Limitation was ignored, and the Participant had not elected or been required to defer the receipt of any Compensation pursuant to a Deferral Plan, over (y) the actual Contribution Credits credited to the Participant’s Defined Benefit Account Balance under the RP for the Plan Year. No credits shall be made to a Participant’s RP-Related Account pursuant to this Section 4.3(b) for any pay period ending on or after July 1, 2007.

(c) Benefits Formula . The formula of the benefits for a Plan Year under this Section 4.3 shall be determined by the Administrator and applied in a uniform manner for all similarly situated Participants.

(d) Additional Years of Service .

(i) Certain Participants, as determined by the Company in its sole discretion, may be deemed to have rendered five additional Years of Service under the Plan. For each such Participant, subject to such terms and conditions as the Company may impose upon such benefits by special agreement with such Participant (in the event of a conflict with this Section 4.3(d), such special agreement shall control), an additional amount shall be credited to the Participant’s RP-Related Account equal to the excess, if any of: (x) the total cumulative Contribution Credits that would have been credited to the Participant’s RP-Related Account under this Section 4.3 had the Participant rendered such additional Years of Service under the RP, over (y) the actual total cumulative Contribution Credits credited to the Participant’s RP-Related

 

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Account under this Section 4.3 as of the date the Participant is eligible for such benefits under the Plan. Subject to the terms of the special agreement with each such Participant, such amounts shall be calculated and credited to the RP-Related Account established for the Participant in accordance with Section 4.5 under procedures to be determined from time to time by the Administrator and consistently applied to similarly situated Participants. Unless otherwise determined by the Administrator or agreed in a special agreement with the Participant, amounts credited under this Section 4.3(d) shall be subject to five-year vesting, and such amounts shall be forfeited by the Participant if the Participant’s service with the Company terminates for any reason other than death or disability (as defined in the RP) before five years of actual service have been rendered to the Company by such Participant.

(ii) For each Participant with a special agreement described in Section 4.3(d)(i) who has not accrued five Years of Service as of July 1, 2007, the Participant shall be entitled to received the credit described in Section 4.3(d)(i) for the 2007 Plan Year as if the RP had remained in effect through December 31, 2007, and the Participant were an active participant in the RP through such date. Regardless of any special agreement described in Section 4.3(d)(i), a Participant shall not be entitled to receive any credit under this Section 4.3 for the 2008 Plan Year or later.

Section 4.4 Benefits in Excess of Limits Under the RSP . If a Participant is a participant in the RSP, other than a terminated participant, the Company shall establish an RSP-Related Account for such Participant, which shall be determined as follows:

(a) “Compensation” for RSP Credits .

(i) Definition . For purposes of RSP credits under this Section 4.4, “Compensation” has the meaning given the term “Total Pay” in the RSP, provided that the Committee may, in its discretion, designate additional or different items as Compensation for purposes of this Section 4.4. Effective July 1, 2007, “Compensation” for purposes of RSP credits under this Section 4.4 shall include the value of restricted stock awards granted to certain Participants in lieu of cash Annual Incentive Awards, subject to the limitation set forth in Section 4.4(a)(ii).

(ii) Limitation . Effective January 1, 2008, “Compensation” of a Participant for purposes of RSP credits under this Section 4.4 shall not include any incentive pay (including the value of any restricted stock awards granted to certain Participants in lieu of cash Annual Incentive Awards) in excess of one times his or her Base Salary. For purposes of this provision, a Participant’s Base Salary shall be determined as of January 1 of each Plan Year. In addition, incentive pay subject to this limitation shall only be those amounts actually paid in the Plan Year, regardless of when such amounts were earned.

(b) Contribution Credits . The following amounts shall be credited to the Participant’s RSP-Related Account for each Plan Year, in accordance with Section 4.5:

(i) Company Stock Contribution . An amount equal to: (a) one percent of the sum of: (i) the Participant’s Compensation, calculated without the Section 401(a)(17) Limitation or Section 415 Limitations, plus (ii) that portion of a Participant’s

 

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Compensation deferred during such Plan Year pursuant to a Deferral Plan, minus (b) the amount actually allocated as a Company Stock Contribution to the account of the Participant under the RSP. For purposes of this Section 4.4(b)(i), the Section 401(a)(17) Limitation shall be deemed to apply pro ratably to each regularly scheduled pay period for each Plan Year. No credits shall be made to a Participant’s RSP-Related Account pursuant to this Section 4.4(b)(i) for any pay period ending on or after July 1, 2007.

(ii) Company Profit-Sharing Contribution . An amount equal to: (a) the Company Profit-Sharing Contribution percentage utilized for purposes of the RSP for that Plan Year for such Participant times the sum of: (i) the Participant’s Compensation, calculated without the Section 401(a)(17) Limitation or Section 415 Limitations, plus (ii) that portion of a Participant’s Compensation deferred during such Plan Year pursuant to a Deferral Plan, minus (b) the amount actually allocated as a Company Profit-Sharing Contribution to the Account of the Participant under the RSP. Unless otherwise expressly provided in the Plan, benefits credited under this Section 4.4(b)(ii) at the time of a Supplemental Distribution shall be restricted to a Participant’s vested portion, as determined under the applicable provisions of the RSP. Any non-vested portion of such deferred compensation to be paid shall be forfeited.

(iii) Company Matching Contribution .

(A) Before March 15, 2005, an amount equal to that portion of the Company Matching Contribution that would have been contributed and allocated to the account of a Participant by the Company as a Matching Contribution on behalf of a Participant, (a) to the extent such contribution is limited by the Section 401(a)(17) Limitation or Section 415 Limitations, minus such amount allocated as a Matching Contribution to the account of the Participant under the RSP, and (b) with respect to that portion of a Participant’s Compensation deferred pursuant to a Deferral Plan, and assuming (i) such portion had not been deferred and (ii) the Participant had elected to make Elective Contributions under the RSP equal to three percent (or such lesser amount if actually elected by the Participant under the RSP) of such Participant’s compensation deferred under such Deferral Plan.

(B) Effective March 15, 2005, a Company matching contribution, whether or not the Participant actually elects to defer Compensation under the RSP, equal to the Participant’s RSP Match Percentage for the Plan Year multiplied by the sum of: (i) that portion of the Participant’s Compensation which was deferred during the Plan Year pursuant to a Deferral Plan, and (ii) that portion of the Participant’s Compensation (not including the amounts deferred as described in clause (i) above) in excess of the Section 401(a)(17) Limitation, shall be contributed and allocated to the Account of a Participant by the Company as a matching contribution on behalf of such Participant; provided, however, for purposes of this Company matching contribution, Compensation shall not be subject to the Section 401(a)(17) Limitation. Unless otherwise expressly provided in the Plan, benefits credited under this Section 4.4(b)(iii) at the time of a Supplemental Distribution shall be restricted to a Participant’s vested portion, as determined under the applicable provisions of the RSP. Any non-vested portion of such deferred compensation to be paid shall be forfeited.

(iv) Company Conversion Contribution . An amount equal to: (a) the Company Conversion Contribution percentage utilized for purposes of the RSP for that Plan Year

 

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for such Participant times the sum of: (i) the Participant’s Compensation, calculated without the Section 401(a)(17) Limitation or Section 415 Limitations, plus (ii) that portion of a Participant’s Compensation deferred during such Plan Year pursuant to a Deferral Plan, minus (b) the amount actually allocated as a Company Conversion Contribution to the Account of the Participant under the RSP. Unless otherwise expressly provided in the Plan, benefits credited under this Section 4.4(b)(iv) at the time of a Supplemental Distribution shall be restricted to a Participant’s vested portion, as determined under the applicable provisions of the RSP. Any non-vested portion of such deferred compensation to be paid shall be forfeited.

(v) Transition Contributions for Certain Former GE Capital Employees . An amount equal to: (a) the Transition Contribution percentage utilized for purposes of the RSP for that Plan Year for such Participant times the sum of: (i) the Participant’s Compensation, calculated without the Section 401(a)(17) Limitation or Section 415 Limitations, plus (ii) that portion of a Participant’s Compensation deferred during such Plan Year pursuant to a Deferral Plan, minus (b) the amount actually allocated as a Transition Contribution to the Account of the Participant under the RSP. Notwithstanding the foregoing, if an individual would be eligible for both Company Conversion Contributions under Section 4.4(b)(iv) and Transition Contributions under this Section 4.4(b)(v), such individual shall only receive the greater of the Company Conversion Contributions and the Transition Contributions to which he or she would otherwise be entitled during such period of dual eligibility. Unless otherwise expressly provided in the Plan, benefits credited under this Section 4.4(b)(v) at the time of a Supplemental Distribution shall be restricted to a Participant’s vested portion, as determined under the applicable provisions of the RSP. Any non-vested portion of such deferred compensation to be paid shall be forfeited.

(c) Company Contribution for Additional Years of Service . Certain Participants, as determined by the Company in its sole discretion, may be deemed to have rendered five additional Years of Service under the RSP. For each such Participant, subject to such terms and conditions as the Company may impose upon such benefits by special agreement with such Participant (in the event of a conflict with this Section 4.4(c), such special agreement shall control), an additional amount shall be credited to the Participant’s RSP-Related Account equal to 80 percent (or such lower percentage specified in the special agreement) of the Participant’s Base Salary (as of the Participant’s date of hire). Subject to the terms of the special agreement with each such Participant, such amounts shall be calculated under procedures to be determined from time to time by the Administrator and consistently applied to similarly situated Participants. Unless otherwise determined by the Administrator or agreed in the special agreement with the Participant, amounts credited under this Section 4.4(c) shall be subject to five-year vesting, and such amounts shall be forfeited by the Participant if the Participant’s service with the Company terminates for any reason other than death or disability (as defined in the RSP) before five years of actual service have been rendered to the Company by such Participant. Amounts described in this Section 4.4(c) shall be credited to the RSP-Related Account established for the Participant in accordance with Section 4.5.

Section 4.5 Crediting of Account .

(a) Time and Manner . Amounts described in this Article 4 shall be credited to the Supplemental Account established for a Participant at such times and in such manner as may

 

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be determined by the Administrator. In making such credits, the Administrator shall generally attempt to, but shall not be required to, credit accounts at a time and in a manner as similar as possible to the time and manner for the crediting of similar amounts under the Qualified Retirement Plans; provided, however, that:

(i) unless the Administrator determines otherwise, amounts credited to a Supplemental Account with respect to the application of the Section 415 Limitations to the RP shall be estimated by the Administrator at the time of a Participant’s Separation from Service, based on such assumptions as the Administrator may reasonably impose and consistently applied to similarly situated Participants, and assuming that the Participant would begin receiving benefits under the RP at the time of the Participant’s Separation from Service, or if later, at the earliest possible date that the Participant could start to receive benefits under the RP, and such estimated amount shall be credited immediately preceding the date upon which the Participant will receive (or commence receiving, in the case of installment payments) payment of benefits under the Plan; and

(ii) unless otherwise determined by the Administrator or agreed in a special agreement with a Participant, amounts credited to a Supplemental Account pursuant to Section 4.4(c) shall be determined as of and credited on the one-year anniversary of the later of the date of the special agreement or the first day of the Participant’s employment by the Company.

The Administrator shall apply such procedures consistently to similarly situated Participants.

(b) Company Stock Contributions . Amounts described in Section 4.4(b)(i) shall be initially credited to the RSP-Related Account established for a Participant, to a subaccount relating to the RSP Stock Fund (the “Stock Fund”). For purposes of the Plan, the amount of such credits shall be determined by the Administrator in a manner determined by the Administrator to be reasonably consistent with similar determinations made under the Stock Fund.

(c) Other Contributions . Amounts described in Section 4.4(b)(ii) (profit-sharing contributions), Section 4.4(b)(iii) (matching contributions), Section 4.4(b)(iv) (conversion credits), Section 4.4(b)(v) (GE Capital transition contributions) and Section 4.4(c) (special agreement credits) shall be credited to the RSP-Related Account established for a Participant, which shall contain various subaccounts selected by the Administrator in its sole and exclusive discretion, representing the various investment funds available to a Participant under the RSP as provided for in the Plan; provided that:

(i) if a Participant has directed RSP amounts to the Stock Fund and the credits to the RSP-Related Account of a Participant pursuant to this Section 4.5(c) to the subaccount relating to the Stock Fund would result in the aggregate Company Stock holdings of such Participant under the Plan exceeding ten percent of the total value of his or her RSP-Related Account (determined at the time of the transfer), then such Participant shall be deemed to have selected, with respect to any such excess, the default subaccount designated by the Investment Committee for purposes of the RSP for allocations exceeding the applicable ten-percent threshold under RSP, or if none, such other default subaccount designated by the Investment Committee for purposes of the RSP; and

 

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(ii) unless otherwise determined by the Administrator, no subaccount shall be established under the Plan to coincide with any self-directed brokerage account which may be available under the RSP.

(d) Additional Accounts . The Administrator may, in its sole and exclusive discretion, establish additional book reserve accounts from time to time. The procedures to reflect and credit increases, decreases, interest, dividends, and other income, gains and losses shall be determined by the Administrator in its sole and exclusive discretion.

Section 4.6 Supplemental Benefits Payment Election . Any Supplemental Benefits payable under the Plan shall be paid in cash from the general assets of the Company in the form elected by the Participant subject to the following:

(a) In accordance with rules and procedures adopted by the Administrator in compliance with Section 409A, existing Participants, including Participants (other than those in pay status on December 31, 2004) under the Prior Plan, may make Supplemental Elections as follows:

(i) Participants who have not previously made an initial Supplemental Election under Section 4.6(b), whether under the Plan or under the Prior Plan, may make such an initial Supplemental Election on or before the date set by the Administrator, which shall not be later than December 31, 2005.

(ii) Participants who have previously made an initial Supplemental Election under Section 4.6(b), whether under the Plan or under the Prior Plan, but who have not previously modified such election under Section 4.6(d), whether under the Plan or under the Prior Plan, may change such Supplemental Election on or before the date set by the Administrator, which shall not be later than December 31, 2005, to elect any payment form permissible under Section 4.6(b) and Section 409A, regardless of whether such Supplemental Election lengthens or shortens the period over which payments from the Plan shall be made. For the avoidance of doubt, any such distribution which accelerates payments from the Plan shall not cause any reduction in the amounts otherwise payable hereunder. Notwithstanding Section 4.6(d), if made on or before December 31, 2005 in accordance with this Section 4.6(a)(ii), such subsequent Supplemental Election shall be made in accordance with Section 409A, but, to the extent permitted under Section 409A transition guidance, need not comply with requirement regarding a minimum additional deferral period of five years. Any such subsequent Supplemental Election made under this Section 4.6(a)(ii) shall constitute a modification for purposes of the one-time limitation contained in Section 4.6(d), and no additional modification will thereafter be permitted under Section 4.6(d).

(iii) Employees who first become Participants after December 31, 2005 may make an initial Supplemental Election in accordance with rules and procedures adopted by the Administrator in compliance with Section 409A.

 

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(iv) Participants who have previously made both a Supplemental Election and a modification to such Supplemental Election shall be subject to the rules of Section 4.6(d) prohibiting any further changes to their Supplemental Elections. However, any Participant who was not in pay status (as defined in Section 1.1(c)) on January 1, 2005 and who previously made a modification to an initial Supplemental Election which accelerated the time period for payments from the Plan shall not have any reduction in the amounts otherwise payable hereunder (notwithstanding Section V(D)(1)(b)(ii) of the Prior Plan).

(b) A Participant may elect to receive his or her Supplemental Benefits in a single lump-sum payment or in annual installments payable over a period of five, ten or 15 consecutive calendar years. Except as provided in Section 4.6(d), a Participant may not modify his or her initial Supplemental Election described in the preceding sentence. Such subsequent Supplemental Election shall apply to the payment of all benefits under the Plan and the Prior Plan (except for benefits that were in pay status on December 31, 2004).

(c) If a Participant fails to make a valid, timely Supplemental Election in accordance with Section 4.6(a) and the rules a